SUCCESSION. SET 7.

(cases 92-111)
[G.R. No. L-26615. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch and
CONSUELO GONZALES VDA. DE PRECILLA,Respondents.
[G.R. No. L-26884. April 30, 1970.]
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as
Judge of the Court of First Instance of Manila, Branch V,
REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES VDA. DE PRECILLA, Respondents.
[G.R. No. L-27200. April 30, 1970.]
TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased
CONSUELO S. GONZALES VDA. DE PRECILLA, petitioner
administratrix, v. SEVERINA NARCISO, ROSA NARCISO,
JOSEFINA NARCISO, VICENTE MAURICIO, DELFIN
MAURICIO, REMEDIOS NARCISO, ENCARNACION,
NARCISO, MARIA NARCISO, EDUARDO NARCISO, FR.
LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA
NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata,
Jr. for respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.
Leandro Sevilla & Ramon C. Aquino for petitioner
administratrix.
Castro, Makalintal & Associates for oppositors-appellants
Encarnacion Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V.
Garcia and Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositorsappellants Severina Narciso, Et. Al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for
oppositors-appellants Natividad del Rosario Sarmiento, Et. Al.

important a document containing the final disposition of ones

worldly possessions should be embodied in an informal and untidy
written instrument; or that the glaring spelling errors should have
escaped her notice if she had actually retained the ability to read the
purported
will
and
had
done
so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR
VALIDITY; ART. 808, NEW CIVIL CODE READING OF THE
WILL TWICE TO A BLIND TESTATOR; PURPOSE. The
rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able to object if
they
are
not
in
accordance
with
his
wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT
CASE. Where as in the 1960 will there is nothing in the record to
show that the requisites of Art. 808 of the Civil Code of the
Philippines that "if the testator is blind, the will shall be read to him
twice," have not been complied with, the said 1960 will suffer from
infirmity
that
affects
its
due
execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED
PERSONS; ADMINISTRATORS; GROUNDS FOR REMOVAL;
ACQUISITION OF INTEREST ADVERSE TO THAT OF THE
ESTATE MAKES THE ADMINISTRATOR UNSUITABLE TO
DISCHARGE THE TRUST; CASE AT BAR. Considering that the
alleged deed of sale was executed when Gliceria del Rosario was
already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a
case for annulment might be filed against the estate or heirs of
Alfonso Precilla. And the administratrix being the widow and heir of
the alleged transferee, cannot be expected to sue herself in an action
to recover property that may turn out to belong to the estate. This,
plus her conduct in securing new copies of the owners duplicate of
titles without the courts knowledge and authority and having the
contract bind the land through issuance of new titles in her husbands
name, cannot but expose her to the charge of unfitness or
unsuitability to discharge the trust, justifying her removal from the
administration
of
the
estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION
MUST AFFECT "THE TITLE OR THE RIGHT OF POSSESSION
OF REAL PROPERTY." On the matter of lis pendens, the
provisions of the Rules of Court are clear: notice of the pendency of
an action may be recorded in the office of the register of deeds of the
province in which the property is situated, if the action affects "the
title or the right of possession of (such) real property."cralaw
virtua1aw
library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The
issue in controversy here is simply the fitness or unfitness of said
special administratrix to continue holding the trust, it does not
involve or affect at all the title to, or possession of, the properties
covered by TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.

SYLLABUS
DECISION
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS;
GROUND FOR DISALLOWANCE; TESTATRIXS DEFECTIVE
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS
OF LATER WILL. The declarations in court of the opthalmologist
as to the condition of the testatrixs eyesight fully establish the fact
that her vision remained mainly for viewing distant objects and not
for reading print; that she was, at the time of the execution of the
second will on December 29, 1960, incapable of reading and could
not have read the provisions of the will supposedly signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION
OF THE WILL; CASE AT BAR. Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were crammed
together into a single sheet of paper, apparently to save on space.
Plainly, the testament was not prepared with any regard for the
defective vision of Da. Gliceria, the typographical errors remained
uncorrected thereby indicating that the execution thereof must have
been characterized by haste. It is difficult to understand that so

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

G.R. No. L-27200 is an appeal from the order of the Court of First
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate the
alleged last will an, testament of the late Gliceria Avelino del Rosario
dated 29 December 1960. G.R. Nos. L-26615 and L-2684 are
separate petitions for mandamus filed by certain alleged heirs of said
decedent seeking (1) to compel the probate court to remove Consuelo
S. Gonzales-Precilla as special administratrix of the estate, for
conflict of interest, to appoint a new one in her stead; and (2) to order
the Register of Deeds of Manila to annotate notice of lis pendens in
TCT Nos. 81735, 81736 ,and 81737, registered in the name of
Alfonso Precilla, married to Consuelo Gonzales y Narciso, and said
to be properly belonging to the estate of the deceased Gliceria A. del
Rosario.

SUCCESSION. SET 7. (cases 92-111)

Insofar as pertinent to the issues involved herein, the facts of these
cases may be stated as follows:chanrob1es virtual 1aw library
Gliceria Avelino del Rosario died unmarried in the City of Manila on
2 September 1965, leaving no descendents, ascendants, brother or
sister. At the time of her death, she was said to be 90 years old more
or less, and possessed of an estate consisting mostly of real
properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a
niece of the deceased, petitioned the Court of First Instance of Manila
for probate of the alleged last will and testament of Gliceria A. del
Rosario, executed on 29 December 1960, and for her appointment as
special administratrix of the latters estate, said to be valued at about
P100,000.00, pending the appointment of a regular administrator
thereof.
The petition was opposed separately by several groups of alleged
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will
executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime
Rosario and children, relatives and legatees in both the 1956 and
1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus,
wards of the deceased and legatees in the 1956 and 1960 wills; (3)
Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4)
Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala
Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter
five groups of persons all claiming to be relatives of Doa Gliceria
within the fifth civil degree. The oppositions invariably charged that
the instrument executed in 1960 was not intended by the deceased to
be her true will; that the signatures of the deceased appearing in the
will was procured through undue and improper pressure and
influence the part of the beneficiaries and/or other persons; that the
testatrix did not know the object of her bounty; that the instrument
itself reveals irregularities in its execution, and that the formalities
required by law for such execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956
will of the deceased, joined the group of Dr. Jaime Rosario in
registering opposition to the appointment of petitioner Consuelo S.
Gonzales Vda. de Precilla as special administratrix, on the ground
that the latter possesses interest adverse to the estate. After the parties
were duly heard, the probate court, in its order of 2 October 1965,
granted petitioners prayer and appointed her special administratrix of
the estate upon a bond for P30,000.00. The order was premised on
the fact the petitioner was managing the properties belonging to the
estate even during the lifetime of the deceased, and to appoint another
person as administrator or co administrator at that stage of the
proceeding would only result in further confusion and difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with
the probate court an urgent motion to require the Hongkong &
Shanghai Bank to report all withdrawals made against the funds of
the deceased after 2 September 1965. The court denied this motion on
22 October 1965 for being premature, it being unaware that such
deposit in the name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime
Rosario and children, Antonio Jesus de Praga, Natividad de Jesus and
Fr. Lucio V. Garcia, petitioned the court for the immediate removal of
the special administratrix. It was their claim that the special
administratrix and her deceased husband, Alfonso Precilla, 2 had
caused Gliceria A. del Rosario to execute a simulated and fraudulent
deed of absolute sale dated 10 January 1961 allegedly conveying unto
said spouses for the paltry sum of P30,000.00 ownership of 3 parcels
of land and the improvements thereon located on Quiapo and San
Nicolas, Manila, with a total assessed value of P334,050.00.
Oppositors contended that since it is the duty of the administrator to
protect and conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of sale land
for recovery of the aforementioned parcels of land be filed against the
special administratrix, as wife and heir of Alfonso Precilla, the
removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an
order directing the Special Administratrix to deposit with the Clerk of
Court all certificates of title belonging to the estate. It was alleged

that on 22 October 1965, or after her appointment, petitioner

Consuelo Gonzales Vda. de Precilla, in her capacity as special
administratrix of the estate of the deceased Gliceria A. del Rosario,
filed with Branch IV of the Court of First Instance of Manila a
motion for the issuance of new copies of the owners duplicates of
certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted,
new copies of the owners duplicates of certificates appearing the
name of Gliceria del Rosario (among which were TCT Nos. 66201,
66202 and 66204) were issued on 15 November 1965. On 8
December 1965, according to the oppositors, the same special
administratrix presented to the Register of Deeds the deed of sale
involving properties covered by TCT Nos. 66201, 66202 and 66204
supposedly executed by Gliceria del Rosario on 10 January 1961 in
favor of Alfonso Precilla, and, in consequence, said certificates of
title were cancelled and new certificates (Nos. 81735, 81736 and
81737) were issued in the name of Alfonso Precilla, married to
Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate
the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring
the due execution of the will, the probate court took note that no
evidence had been presented to establish that the testatrix was not of
sound mind when the will was executed; that the fact that she had
prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page does not
render the latter invalid; that, the erasures and alterations in the
instrument were insignificant to warrant rejection; that the
inconsistencies in the testimonies of the instrumental witnesses which
were noted by the oppositors are even indicative of their truthfulness.
The probate court, also considering that petitioner had already shown
capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and
interested therein, appointed said petitioner regular administratrix
with a bond for P50,000.00. From this order all the oppositors
appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the
oppositors motion of 14 December 1965 for the removal of the then
special administratrix, as follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the
special administratrix and to appoint another one in her stead, is in
order that an action may be filed against the special administratrix for
the annulment of the deed of sale executed by the decedent on
January 10, 1961. Under existing documents, the properties sold
pursuant to the said deed of absolute sale no longer forms part of the
estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants
that an action be filed by them to annul the aforesaid deed absolute
sale, it is not necessary that the special administratrix be removed and
that another one be appointed to file such action. Such a course of
action would only produce confusion and difficulties in the
settlement of the estate. The movants may file the aforesaid
proceedings, preferably in an independent action, to secure the nullity
of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in
court of the titles in the name of the decedent, the same was also
denied, for the reason that if the movants were referring to the old
titles, they could no longer be produced, and if they meant the new
duplicate copies thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because they
were already cancelled and other certificates were issued in the name
of Alfonso Precilla. This order precipitated the oppositors filing in
this Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr.
Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.),
which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the
court, the oppositors requested the Register of Deeds of Manila to
annotate a notice of lis pendens in the records of TCT Nos. 81735,
81736, and 81737 in the name of Alfonso Precilla. And when said
official refused to do so, they applied to the probate court (in Sp.
Proc. No. 62618) for an order to compel the Register of Deeds to
annotate a lis pendens notice in the aforementioned titles contending

SUCCESSION. SET 7. (cases 92-111)

that the matter of removal and appointment of the administratrix,
involving TCT Nos. 81735, 81736, and 81737, was already before
the Supreme Court. Upon denial of this motion on 12 November
1966, oppositors filed another mandamus action, this time against the
probate court and the Register of Deeds. The case was docketed and
given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the
correctness of the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two
wills: one on 9 June 1956 consisting of 12 pages and written in
Spanish, a language that she knew and spoke, witnessed by Messrs.
Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29
December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public Remigio M.
Tividad.

documents Exhibits 3-B, 3-C and 3-D from which you could inform
the court as to the condition of the vision of the patient as to the right
eve?
"A Under date of August 30, 1960, is the record of refraction. that is
setting of glass by myself which showed that the right eye with my
prescription of glasses had a vision of 2 over 60 (20/60) and for the
left eye with her correction 20 over 300 (20/300).
"Q In laymans language, Doctor, what is the significance of that
notation that the right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or
persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for distance
sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)

Called to testify on the due execution of the 1960 will, instrumental

witnesses Decena, Lopez and Rosales uniformly declared that they
were individually requested by Alfonso Precilla (the late husband of
petitioner special administratrix) to witness the execution of the last
will of Doa Gliceria A. del Rosario; that they arrived at the house of
the old lady at No. 2074 Azcarraga, Manila, one after the other, in the
afternoon of 29 December 1960; that the testatrix at the time was
apparently of clear and sound mind, although she was being aided by
Precilla when she walked; 3 that the will, which was already
prepared, was first read "silently" by the testatrix herself before she
signed it; 4 that he three witnesses thereafter signed the will in the
presence of the testatrix and the notary public and of one another.
There is also testimony that after the testatrix and the witnesses to the
will acknowledged the instrument to be their voluntary act and deed,
the notary public asked for their respective residence certificates
which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the
will, the notary public filled in the blanks in the instrument with the
date, 29 January 1960, before he affixed his signature and seal
thereto. 6 They also testified that on that occasion no pressure or
influence has been exerted by any person upon the testatrix to
execute the will.
Of course, the interest and active participation of Alfonso Precilla in
the signing of this 1960 will are evident from the records. The will
appeared to have been prepared by one who is not conversant with
the spelling of Tagalog words, and it has been shown that Alfonso
Precilla is a Cebuano who speaks Tagalog with a Visayan accent. 7
The witnesses to the will, two of whom are fellow Visayans, 8
admitted their relationship or closeness to Precilla. 9 It was Precilla
who instructed them to go to the house of Gliceria del Rosario on 29
December 1960 to witness an important document, 10 and who took
their residence certificates from them a few days before the will was
signed. 11 Precilla had met the notary public and witnesses Rosales
and Lopez at the door of the residence of the old woman; he ushered
them to the room at the second floor where the signing of the
document took place; 12 then he fetched witness Decena from the
latters haberdashery shop a few doors away and brought him to, the
house the testatrix. 13 And when the will was actually executed
Precilla was present. 14
The oppositors-appellants in the present case, however, challenging
the correctness of the probate courts ruling, maintain that on 29
December 1960 the eyesight of Gliceria del Rosario was so poor and
defective that she could not have read the provisions of the will,
contrary to the testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said ophthalmologist, whose
expertise was admitted by both parties, testified, among other things,
that when Doa Gliceria del Rosario saw him for consultation on 11
March 1960 he found her left eye to have cataract (opaque lens), 15
and that it was "above normal in pressure", denoting a possible
glaucoma, a disease that leads to blindness 16 As to the conditions of
her right eye, Dr. Tamesis declared:jgc:chanrobles.com.ph

The records also show that although Dr. Tamesis operated of the left
eye of the decedent at the Lourdes Hospital on 8 August 1960; as of
23 August 1960, inspite of the glasses her vision was only "counting
fingers," 17 at five feet. The cross-examination of the doctor further
elicited the following responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses
for her, or glasses?
"A After her discharge from the hospital, she was coming to my clinic
for further examination and then sometime later glasses were
prescribed.
x

"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye
which I prescribed the eye which I operated she could see only
forms but not read. That is on the left eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even better than
the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him
on 29 November 1965 certifying that Gliceria del Rosario was
provided with aphakic lenses and "had been under medical
supervision up to 1963 with apparently good vision", the doctor had
this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that
she was able to read?
"A No, not necessarily, only able to go around, take care of herself
and see. This I can tell you, this report was made on pure
recollections and I recall she was using her glasses although I recall
also that we have to give her medicines to improve her vision, some
medicines to improve her identification some more.
x

"Q What about the vision in the right eve, was that corrected by the
glasses?
"A Yes, with the new prescription which I issued on 80 August 1960.
It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw library

"Q But is there anything here in the entry appearing in the other

SUCCESSION. SET 7. (cases 92-111)

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the
deceased and, therefore, has first hand knowledge of the actual
condition of her eyesight from August, 1960 up to 1963, fully
establish the fact that notwithstanding the operation and removal of
the cataract in her left eye and her being fitted with aphakic lens
(used by cataract patients), her vision remained mainly for viewing
distant objects and not for reading print. Thus, the conclusion is
inescapable that with the condition of her eyesight in August, 1960,
and there is no evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not have read
the provisions of the will supposedly signed by her on 29 December
1960. It is worth noting that the instrumental witnesses stated that she
read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix,
the appearance of the will, Exhibit "D", acquires striking
significance. Upon its face, the testamentary provisions, the
attestation clause and acknowledgment were crammed together into a
single sheet of paper, to much so that the words had to be written
very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol"
&", apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Doa Gliceria.
Further, typographical errors like "HULINH" for "HULING" (last),
"Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES",
"instrumental" for "Instrumental", and "acknowledged" for
"acknowledge, remained uncorrected, thereby indicating that
execution thereof must have been characterized by haste. It is
difficult to understand that so important a document containing the
final disposition of ones worldly possessions should be embodied in
an informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually
retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and
that its admission to probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the
photographs, Exhibits "E" to "E-1", in no way proves; that she was
able to read a closely typed page, since the acts shown do not require
vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by
her. Neither is the signing of checks (Exhibits "G" to "G-3") by her
indicative of ability to see at normal reading distances. Writing or
signing of ones name, when sufficiently practiced, becomes
automatic, so that one need only to have a rough indication of the
place where the signature is to be affixed in order to be able to write
it. Indeed, a close examination of the checks, amplified in the
photograph, Exhibit "O", et seq., reinforces the contention of
oppositors that the alleged testatrix could not see at normal reading
distance: the signatures in the checks are written far above the printed
base, lines, and the names of the payees as well as the amounts
written do not appear to be in the handwriting of the alleged testatrix,
being in a much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike
a blind testator, and the due execution of her will would have
required observance of the provisions of Article 808 of the Civil
Code.
"ART. 808. If the testator is blind, the will shall be read to him twice;
once, by one of the subscribing witnesses, and again, by the notary
public before whom the will is acknowledged."cralaw virtua1aw
library
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), 18 is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood

by the handicapped testator, thus making them truly reflective of his

desire, is evidenced by the requirement that the will should be read to
the latter, not only once but twice, by two different persons, and that
the witnesses have to act within the range of his (the testators) other
senses. 19
In connection with the will here in question, there is nothing in the
records to show that the above requisites have been complied with.
Clearly, as already stated, the 1960 will sought to be probated suffers
from infirmity that affects its due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et
Al., against the denial by the probate court of their petition for the
removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the deceased Doa Gliceria (Petition,
G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the
special administratrix of an interest adverse to that of the estate. It
was their contention that through fraud her husband had caused the
deceased Gliceria del Rosario to execute a deed of sale, dated 10
January 1961, by virtue of which the latter purportedly conveyed
unto said Alfonso D. Precilla, married to Consuelo Gonzales y
Narciso, the ownership of 3 parcels of land and the improvements
thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13
September 1966 (Annex "P", Petition) reasoned out that since the
properties were already sold no longer form part of the estate. The
conflict of interest would not be between the estate and third parties,
but among the different claimants of said properties, in which case,
according to the court, the participation of the special administratrix
in the action for annulment that may be brought would not be
necessary.
The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to
be undertaken on behalf of the estate by the special administratrix,
affecting as it does the property or rights of the deceased. 20 For the
rule is that only where there is no special proceeding for the
settlement of the estate of the deceased may the legal heirs
commence an action arising out of a right belonging to their ancestor.
21
There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would
have to be instituted, the matter not falling within the competence of
the probate court. 22 Considering the facts then before it, i.e., the
alleged deed of sale having been executed by Gliceria del Rosario on
10 January 1961, when she was already practically blind; and that the
consideration of P30,000.00 seems to be unconscionably small for
properties with a total assessed value of P334,050.00, there was
likelihood that a case for annulment might indeed be filed against the
estate or heirs of Alfonso Precilla. And the administratrix, being the
widow and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to belong to
the estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owners duplicates of
TCT Nos. 66201, 66202, and 66204, without the courts knowledge
or authority, and on the pretext that she needed them in the
preparation of the inventory of the estate, when she must have
already known by then that the properties covered therein were
already "conveyed" to her husband by the deceased, being the latters
successor, and having the contract bind the land through issuance of
new titles in her husbands name cannot but expose her to the charge
of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the
oppositors motion to require the Hongkong and Shanghai Bank to
report all withdrawals made against the funds of the deceased after 2
September 1965 and (2) the motion for annotation of a lis pendens
notice on TCT Nos. 81735, 81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex
"H") that it could not have taken action on the complaint against the

SUCCESSION. SET 7. (cases 92-111)

alleged withdrawals from the bank deposits of the deceased, because
as of that time the court had not yet been apprised that such deposits
exist. Furthermore, as explained by the special administratrix in her
pleading of 30 October 1965, the withdrawals referred to by the
oppositors could be those covered by checks issued in the name of
Gliceria del Rosario during her lifetime but cleared only after her
death. That explanation, which not only appears plausible but has not
been rebutted by the petitioners-oppositors, negates any charge of
grave abuse in connection with the issuance of the order here in
question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of
the Rules of Court are clear: notice of the pendency of an action may
be recorded in the office of the register of deeds of the province in
which the property is situated, if the action affects "the title or the
right of possession of (such) real property." 23 In the case at bar, the
pending action which oppositors seek to annotate in the records of
TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding
filed in this Court (G.R. No. L-26615). As previously discussed in
this opinion, however, that case is concerned merely with the
correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In short,
the issue in controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not
involve or affect at all the title to, or possession of, the properties
covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the
pendency of such case (L-26615) is not an action that can properly be
annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below
allowing to probate the alleged 1960 will of Gliceria A. del Rosario is
hereby reversed and set aside. The petition in G.R. No. L-26615
being meritorious, the appealed order is set aside and the court below
is ordered to remove the administratrix, Consuelo Gonzales Vda. de
Precilla, and appoint one of the heirs intestate of the deceased Doa
Gliceria Avelino del Rosario as special administrator for the purpose
of instituting action on behalf of her estate to recover the properties
allegedly sold by her to the late Alfonso D. Precilla. And in Case
G.R. No. L-26864, petition is dismissed. No costs.
Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and
Villamor, JJ., concur.
Zaldivar and Castro, JJ., took no part.
Barredo, J., is on leave.

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 74695 September 14, 1993
In the Matter of the Probate of the Last Will and Testament of
the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES
LUCIANO, Associate Justices, Intermediate Appellate Court,
First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
BELLOSILLO, J.:
1

Before us is an appeal from the Decision dated 11 April 1986 of the

First Civil Cases Division of the then Intermediate Appellate Court,
now Court of Appeals, which affirmed the Order dated 27 June
1983 2 of the Regional Trial Court of Sta. Cruz, Laguna, admitting to
probate the last will and testament 3 with codicil 4 of the late Brigido
Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a
notarial will entitled "Huling Habilin" wherein he disinherited an
illegitimate son (petitioner) and expressly revoked a previously
executed holographic will at the time awaiting probate before Branch
4 of the Regional Trial Court of sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public
and by private respondent who were present at the execution, the
testator did not read the final draft of the will himself. Instead, private
respondent, as the lawyer who drafted the eight-paged document,
read the same aloud in the presence of the testator, the three
instrumental witnesses and the notary public. The latter four followed
the reading with their own respective copies previously furnished
them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni
Brigido Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye operation. Brigido
was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial
will, the testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his presence
and in the presence of the three instrumental witnesses (same as those
of the notarial will) and the notary public who followed the reading
using their own copies.
A petition for the probate of the notarial will and codicil was filed
upon the testator's death on 3 January 1979 by private respondent as
executor with the Court of First Instance, now Regional Trial Court,
of Siniloan, Laguna. 5Petitioner, in turn, filed an Opposition on the
following grounds: that the will sought to be probated was not
executed and attested as required by law; that the testator was insane
or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed
under duress, or influence of fear and threats; that it was procured by
undue and improper pressure and influence on the part of the
beneficiary who stands to get the lion's share of the testator's estate;
and lastly, that the signature of the testator was procured by fraud or
trick.
When the oppositor (petitioner) failed to substantiate the grounds
relied upon in the Opposition, a Probate Order was issued on 27 June
1983 from which an appeal was made to respondent court. The main
thrust of the appeal was that the deceased was blind within the
meaning of the law at the time his "Huling Habilin" and the codicil
attached thereto was executed; that since the reading required by Art.
808 of the Civil Code was admittedly not complied with, probate of
the deceased's last will and codicil should have been denied.

On 11 April 1986, the Court of Appeals rendered the decision under

review with the following findings: that Brigido Alvarado was not
blind at the time his last will and codicil were executed; that
assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses and the
notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art.
808 was not followed to the letter, there was substantial compliance
since its purpose of making known to the testator the contents of the
drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado
blind for purpose of Art, 808 at the time his "Huling Habilin" and its
codicil were executed? If so, was the double-reading requirement of
said article complied with?
Regarding the first issue, there is no dispute on the following facts:
Brigido Alvarado was not totally blind at the time the will and codicil
were executed. However, his vision on both eyes was only of
"counting fingers at three (3) feet" by reason of the glaucoma which
he had been suffering from for several years and even prior to his
first
consultation
with
an
eye
specialist
on
14 December 1977.
The point of dispute is whether the foregoing circumstances would
qualify Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be
read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before
whom the will is acknowledged.
Petitioner contends that although his father was not totally blind
when the will and codicil were executed, he can be so considered
within the scope of the term as it is used in Art. 808. To support his
stand, petitioner presented before the trial court a medical certificate
issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), 6 the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent. 7 Dr. Roasa
explained that although the testator could visualize fingers at three (3)
feet, he could no longer read either printed or handwritten matters as
of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical
testimony, held that the testator could still read on the day the will
and the codicil were executed but chose not to do so because of "poor
eyesight." 9 Since the testator was still capable of reading at that time,
the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was
still capable of reading at the time his will and codicil were prepared,
the fact remains and this was testified to by his witnesses, that
Brigido did not do so because of his "poor," 10 "defective," 11 or
"blurred" 12 vision making it necessary for private respondent to do
the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an
insight into the scope of the term "blindness" as used in Art. 808, to
wit:
The rationale behind the requirement of reading
the will to the testator if he is blind or incapable
of reading the will himself (as when he is
illiterate), is to make the provisions thereof
known to him, so that he may be able to object if
they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind
testators but also to those who, for one reason or another, are

SUCCESSION. SET 7. (cases 92-111)

"incapable of reading the(ir) will(s)." Since Brigido Alvarado was
incapable of reading the final drafts of his will and codicil on the
separate occasions of their execution due to his "poor," "defective,"
or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term
"blind" as it is used in Art. 808. Unless the contents were read to him,
he had no way of ascertaining whether or not the lawyer who drafted
the will and codicil did so confortably with his instructions. Hence, to
consider his will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been complied with.

The spirit behind the law was served though the letter was not.
Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only
defeat the testator's will. 17

Article 808 requires that in case of testators like Brigido Alvarado,

the will shall be read twice; once, by one of the instrumental
witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him
an opportunity to object if anything is contrary to his instructions.

The object of the solemnities surrounding the

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

As a final word to convince petitioner of the propriety of the trial

court's Probate Order and its affirmance by the Court of Appeals, we
quote the following pronouncement in Abangan v. Abangan, 18 to wit:

That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and the five-paged
codicil who read the same aloud to the testator, and read them only
once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial
compliance and that the single reading suffices for purposes of the
law. On the other hand, petitioner maintains that the only valid
compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the
contents of the will and codicil to Brigido, probate of the latter's will
and codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition
must be denied.
This Court has held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been
satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of
fraud and trickery but are never intended to be so rigid and inflexible
as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and
codicil aloud in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent thereto, the
testator affirmed, upon being asked, that the contents read
corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not
sufficiently made known and communicated to the testator. On the
contrary, with respect to the "Huling Habilin," the day of the
execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his
expressed wishes even prior to 5 November 1977 when Atty. Rino
went to the testator's residence precisely for the purpose of securing
his conformity to the draft. 15

Brigido Alvarado had expressed his last wishes in clear and

unmistakable terms in his "Huling Habilin" and the codicil attached
thereto. We are unwilling to cast these aside fro the mere reason that a
legal requirement intended for his protection was not followed
strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already
been accomplished. To reiterate, substantial compliance suffices
where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of
respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
Considering the length of time that this case has remained pending,
this decision is immediately executory. Costs against petitioner.
SO ORDERED.

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit
silently. Afterwards, Atty. Nonia de la Pena (the notary public) and
Dr. Crescente O. Evidente (one of the three instrumental witnesses
and the testator's physician) asked the testator whether the contents of
the document were of his own free will. Brigido answered in the
affirmative. 16 With four persons following the reading word for word
with their own copies, it can be safely concluded that the testator was
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms
actually appearing on the typewritten documents. This is especially
true when we consider the fact that the three instrumental witnesses
were persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being known to him
since childhood.

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-21151

February 25, 1924

In re will of Antonio Vergel de Dios, deceased.

RAMON J. FERNANDEZ, petitioner-appellant,
HERMELO VERGEL DE DIOS and SEVERINA
JAVIER, legatees-appellants,
vs.
FERNANDO VERGEL DE DIOS, ET AL., opponents-appellees.
The question in this case is as to the validity of the document Exhibit
A as a will, which was propounded by Ramon J. Fernandez for
probate, and contested by Fernando Vergel de Dios and Francisco,
Ricardo and Virgilio Rustia, the court of First Instance of Manila
having denied its probate.
The applicant takes this appeal, assigning error to the action of the
lower court in holding the attestation fatally defective and in not
finding Act No. 2645 void.
The defects attributed to the will by the contestants are as follows, to
wit:
(a) It was not sufficiently proven that the testator knew the
contents of the will.
(b) The testator did not sign all the pages of the will.
(c) He did not request anybody to attest the document as his
last will.
(d) He did not sign it in the presence of any witness.
(e) The witnesses did not sign it in the presence of the
testator, or of each other, nor with knowledge on the part of
the testator that they were signing his will.
(f ) The witnesses did not sign the attestation clause before
the death of the testator.
(g) This clause was written after the execution of the
dispositive part of the will and was attached to the will after
the death of the testator.
(h) The signatures of the testator on page 3 of Exhibit A are
not authentic.
The evidence sufficiently shows that when Attorney Lopez Lizo read
the will to the testator, the latter's mind was perfectly sane and he
understood it: that he signed all the pages of the will proper, although
he did not sign the page containing the attestation clause; that while
he did not personally call the witnesses, yet the latter were invited by
Attorney Lopez Lizo to act as such in his presence. The law does not
require that the testator precisely be the person to request the
witnesses to attest his will. It was also sufficiently established in the
record, beside being stated in the attestation clause, that the testator
signed the will in the presence of the three witnesses and that the
latter, in turn, signed it in the presence of the testator and of each
other, the testator knowing that the witnesses were signing his will;
that the witnesses signed the attestation clause before the death of the
testator; that this clause, with the names of the witnesses in blank,
was prepared before the testator signed the will, and that the sheet
containing said clause, just as those of the will proper, was a loose
sheet, and that all the four sheets of which the will Exhibit A was
actually composed were kept together and are the very ones presented
in this case; and finally, that the signatures of the testator on page 3 of
said exhibit are authentic.
It thus appearing from the record that there are no such defects as
those mentioned by the opponents, and it having been proven that the
testator executed said will in a language known by him and
consciously, freely and spontaneously, it would seen unnecessary to

go further, and the matter might be brought to a close right here, by

holding the will in question valid and allowable to probate, were it
not for the fact that the trial court and the opponents questioned the
sufficiency and validity of the attestation clause because the sheet on
which it is written is not numbered, and it is not stated there that the
testator signed on the margin of each sheet of the will in the presence
of the three witnesses, or that the latter signed it is the presence of the
testator and of each other, and specially because said attestation
clause is not signed by the testator either at the margin or the bottom
thereof.
As to the numbering of the sheet containing the attestation clause, it
is true that it does not appeal on the upper part of the sheet, but it
does not appear in its text, the pertinent part of which is copied
hereinafter, with the words, having reference to the number of sheets
of the will, underscored, including the page number of the attestation:
* * * We certify that the foregoing document written in
Spanish, a language known by the testator Antonino Vergel
de Dios, consisting of three sheet actually used,
correlatively enumerated, besides this sheet . . . .
If, as stated in this clause, the foregoing document consists
of three sheets, besides that of the clause itself, which is in singular, it
is clear that such a sheet of the attestation clause is the fourth and that
the will, including said sheet, has four sheets. This description
contained in the clause in question constitutes substantial compliance
with the requirements prescribed by the law regarding the paging. So
it was held by this Court in the case of Abangan vs. Abangan (40
Phil., 476), where the sheet containing the attestation, as well as the
preceding one, was also not paged. Furthermore the law, as we shall
see later on, does not require that the sheet containing nothing but the
attestation clause, wholly or in part, be numbered or paged.
Consequently this lack of paging on the attestation sheet does not
take anything from the validity of the will.
Turning now to the question whether or not in this clause it is stated
that the testator signed on the margin of each sheet of the will, in the
presence of the witnesses and the latter in the presence of each other,
let us see what is said in said clause on this point, and to this end its
pertinent part is hereinafter transcribed and is as follows:
* * * and he (the testator) signed at the bottom of the
aforesaid will in our presence and we at his request did the
same in his presence and in that of each other as witnesses
to the will, and lastly, the testator, as well as we, as
witnesses, signed in the same manner on the left margin of
each sheet. (Emphasis ours.)
The underscored phrase "in the same manner" cannot in the instant
case mean, and it in fact means nothing, but that the testator and the
witnesses signed on the left margin of each sheet of the will "in the
same manner" in which they signed at the bottom thereof, that is, the
testator in the presence of the witnesses and the latter in the presence
of the testator and of each other. This phrase in the same
manner cannot, in view of the context of the pertinent part, refer to
another thing, and was used here as a suppletory phrase to include
everything and avoid the repetition of a long and difficult one, such
as what is meant by it. The same section 618 of the Code of Civil
Procedure, in order to avoid the repetition of the same long phrase
about the testator having signed in the presence of the witnesses and
the latter in the presence of each other, resorts to a similar expression
in the second paragraph and says, "as aforesaid."
Concerning the absolute absence of the signature of the testator from
the sheet containing the attestation clause, this point was already
decided in the above cited case of Abangan vs. Abangan, where this
court held that:
The testator's signature is not necessary in the attestation
clause because this, as its name implies, appertains only to
the witnesses and not to the testator.

SUCCESSION. SET 7. (cases 92-111)

In that case of Abangan vs. Abangan it was held that the signature of
the testator is not necessary in the attestation clause, but the theory is
not announced that such a clause is unnecessary to the validity to the
will.
For this reason such doctrine does not annul the judgment in the case
of Uy Coque vs. Navas L. Sioca (43 Phil., 405), where in effect the
doctrine, among others, was laid down that the attestation clause is
necessary to the validity of the will. One of the points on which
greatest stress was laid in that case Uy Coque is that the requirements
of the law regarding the number of the pages used, the signing of the
will and of each of its pages by the testator in the presence of three
witnesses, and the attestation and signing of the will and of each of its
pages by the witnesses in the presence of each other cannot be
proven aliunde but by the attestation clause itself which must express
the complaince of the will with such requirements. But it was not
held in that case of Uy Coque that the signature of the testator was
necessary in the attestation clause, nor was such point discussed
there, which was the point at issue in the case of Abangan vs.
Abangan, supra.
The appellees, however, argue that such clause in the case
of Abangan vs. Abangan begins at the bottom and on the same sheet
in which the testamentary provision terminated, that is to say, the will
properly speaking. Even then if it is intended to commit
misrepresentation or fraud, which are the things that with the
requirements of the law for the making and attesting of wills it is
intended to avoid, it is just the same that the clause; as in the case
of Abangan vs. Abangan, begins at the bottom of the will properly
speaking, as, like the case before us, it is wholly contained in a
separate sheet. The fact is that this separate sheet, containing the
attestation clause wholly or in part, is not signed any place by the
testator in the case of Abangan vs. Abangan, as it is not in the present
case.
Section 618 of the code of Civil Procedure, as amended by Act No.
2645, contains three paragraphs, of which the first enumerates in
general terms the requirements to be met by a will executed after said
Code took effect, to wit, that the language or dialect in which it is
written be known by the testator, that it be signed by the latter or by
another person in the name of the testator by his express direction and
in his presence, and that it be attested and signed by three or more
credible witnesses in the presence of the testator and of each other.
These general rules are amplified in the next two paragraphs as to the
special requirements for the execution of the will by the testator and
the signing thereof by the witnesses, with which the second
paragraph of the section deals, and as to the attestation clause treated
in the third and last paragraph of said section 618.
For this reason the second paragraph of this section 618 says:
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in
letters placed on the upper part of each sheet.
These are the solemnities that must surround the execution of the will
properly speaking, without any reference whatsoever to the
attestation clause not treated in this second paragraph. It is in this
second paragraph which deals only with the will (without including
the attestation clause), that the signature or name of the testator and
those of the witnesses are mentioned as necessary on the left margin
of each and everyone of the sheets of the will (not of the attestation
clause), as well as the paging of said sheet (of the will, and not of the
attestation clause which is not yet spoken of).
Now, are the signatures of the testator and the paging of the will also
necessary in the attestation clause? Let us see the last paragraph of
this section 618 of the Code which already deals with the
requirements for the attestation clause. This last paragraph reads thus:
The attestation shall state the number of sheets or pages
used, upon which the will is written, and the fact that the

testator signed the will and every page thereof, or caused

some other person to write his name, under his express
direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the
presence of the testator and of each other.
As may be seen this last paragraph refers to the contents of the text of
the attestation, not the requirements or signatures thereof outside of
its text. It does not require that the attestation be signed by the testator
or that the page or sheet containing it be numbered.
From this analysis of our law now in force it appears:
First. That the will must have an attestation clause as a
complement, without which it cannot be probate and with
which only not aliunde (Uy Coque vs. Navas L.
Sioca , supra) may the requirements to be stated in its text
be proven. The attestation clause must be prepared and
signed, as in the instant case, on the same occasion on
which the will is prepared and signed, in such a way that
the possibility of fraud, deceit or suppression of the will or
the attestation clause be reduced to a minimum; which
possibility always exists, as experience shows, in spite of
the many precautions taken by the legislator to insure the
true and free expression of one's last will.
Second. That the will is distinct and different from the
attestation, although both are necessary to the validity of
the will, similar, in our opinion, to a document which is not
public so long as it is not acknowledged before a notary, the
document being a distinct and different thing from the
acknowledgment, each of which must comply with
different requisites, among which is the signature of the
maker which is necessary in the document but not in the
acknowledgment and both things being necessary to the
existence of the public document.
Third. That the will proper must meet the requirements
enumerated in the second paragraph of section 618 of the
Code of Civil Procedure.
Fourth. That the text of the attestation clause must express
compliance with the requirements prescribed for the will.
In the case at bar the attestation clause in question states that the
requirements prescribed for the will were complied with, and this is
enough for it, as such attestation clause, to be held as meeting the
requirements prescribed by the law for it.
The fact that in said clause the signature of the testator does not
appear does not affect its validity, for, as above stated, the law does
not require that it be signed by the testator.
We find no merit in the assignment of error raising the question as to
the validity of Act No. 2645, which is valid. For the purposes of this
decision, it is not necessary to reason out this conclusion, it being
sufficient for the adjudication of this case to hold the first error
assigned by the appellants to have been demonstrated.
The foregoing conclusions lead us to hold, as we do here by hold,
that the documents Exhibit A, as the last will and testament of the
deceased Antonio Vergel de Dios, meets all the requirements
prescribed by the low now in force and therefore it must be allowed
to probate as prayed for by the petitioner.
The judgment appealed from is reversed, and it is ordered that the
lower court proceed with the probate of the will Exhibit A in
accordance with law, without express pronouncement as to costs. So
ordered.
Separate Opinions
OSTRAND, J., dissenting:

SUCCESSION. SET 7. (cases 92-111)

I dissent and think that the judgment appealed from should have been
affirmed. In my opinion, the decision of the Court affords a striking
illustration of the old adage that "a hard case makes bad law."

10

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 103554 May 28, 1993
TEODORO CANEDA, LORENZA CANEDA, TERESA
CANEDA, JUAN CABALLERO, AUREA CABALLERO,
OSCAR LAROSA, HELEN CABALLERO, SANTOS
CABALLERO, PABLO CABALLERO, VICTOR RAGA,
MAURICIA RAGA, QUIRICA RAGA, RUPERTO ABAPO,
represented herein by his Attorney-in-Fact, ARMSTICIA *
ABAPO VELANO, and CONSESO CANEDA, represented
herein by his heirs, JESUS CANEDA, NATIVIDAD CANEDA
and ARTURO CANEDA, petitioners,
vs.
HON. COURT OF APPEALS and WILLIAM CABRERA, as
Special Administrator of the Estate of Mateo
Caballero, respondents.
REGALADO, J.:
Presented for resolution by this Court in the present petition for
review on certiorari is the issue of whether or not the attestation
clause contained in the last will and testament of the late Mateo
Caballero complies with the requirements of Article 805, in relation
to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a
widower without any children and already in the twilight years of his
life, executed a last will and testament at his residence in Talisay,
Cebu before three attesting witnesses, namely, Cipriano Labuca,
Gregorio Cabando and Flaviano Toregosa. The said testator was duly
assisted by his lawyer, Atty. Emilio Lumontad, and a notary public,
Atty. Filoteo Manigos, in the preparation of that last will. 1 It was
declared therein, among other things, that the testator was leaving by
way of legacies and devises his real and personal properties to
Presentacion Gaviola, Angel Abatayo, Rogelio Abatayo, Isabelito
Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all of whom do
not appear to be related to the testator. 2
Four months later, or on April 4, 1979, Mateo Caballero himself filed
a petition docketed as Special Proceeding No. 3899-R before Branch
II of the then Court of First Instance of Cebu seeking the probate of
his last will and testament. The probate court set the petition for
hearing on August 20, 1979 but the same and subsequent scheduled
hearings were postponed for one reason to another. On May 29, 1980,
the testator passed away before his petition could finally be heard by
the probate court. 3 On February 25, 1981, Benoni Cabrera, on of the
legatees named in the will, sough his appointment as special
administrator of the testator's estate, the estimated value of which was
P24,000.00, and he was so appointed by the probate court in its order
of March 6, 1981. 4
Thereafter, herein petitioners, claiming to be nephews and nieces of
the testator, instituted a second petition, entitled "In the Matter of the
Intestate Estate of Mateo Caballero" and docketed as Special
Proceeding No. 3965-R, before Branch IX of the aforesaid Court of
First Instance of Cebu. On October 18, 1982, herein petitioners had
their said petition intestate proceeding consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of
Cebu and opposed thereat the probate of the Testator's will and the
appointment of a special administrator for his estate. 5
Benoni Cabrera died on February 8, 1982 hence the probate court,
now known as Branch XV of the Regional Trial Court of Cebu,
appointed William Cabrera as special administrator on June 21, 1983.
Thereafter, on July 20, 1983, it issued an order for the return of the
records of Special Proceeding No. 3965-R to the archives since the
testate proceeding for the probate of the will had to be heard and
resolved first. On March 26, 1984 the case was reraffled and
eventually assigned to Branch XII of the Regional Trial Court of
Cebu where it remained until the conclusion of the probate
proceedings. 6
In the course of the hearing in Special Proceeding No. 3899-R, herein
petitioners appeared as oppositors and objected to the allowance of
the testator's will on the ground that on the alleged date of its

execution, the testator was already in the poor state of health such
that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of
the testator therein. 7
On the other hand, one of the attesting witnesses, Cipriano Labuca,
and the notary public Atty. Filoteo Manigos, testified that the testator
executed the will in question in their presence while he was of sound
and disposing mind and that, contrary to the assertions of the
oppositors, Mateo Caballero was in good health and was not unduly
influenced in any way in the execution of his will. Labuca also
testified that he and the other witnesses attested and signed the will in
the presence of the testator and of each other. The other two attesting
witnesses were not presented in the probate hearing as the had died
by then. 8
On April 5, 1988, the probate court rendered a decision declaring the
will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
. . . The self-serving testimony of the two
witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and
Cipriano Labuca who clearly told the Court that
indeed Mateo Caballero executed the Last Will
and Testament now marked Exhibit "C" on
December 5, 1978. Moreover, the fact that it was
Mateo Caballero who initiated the probate of his
Will during his lifetime when he caused the filing
of the original petition now marked Exhibit "D"
clearly underscores the fact that this was indeed
his Last Will. At the start, counsel for the
oppositors manifested that he would want the
signature of Mateo Caballero in Exhibit "C"
examined by a handwriting expert of the NBI but
it would seem that despite their avowal and
intention for the examination of this signature of
Mateo Caballero in Exhibit "C", nothing came
out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen
Caballero Campo as witnesses for the oppositors.
All told, it is the finding of this Court that Exhibit
"C" is the Last Will and Testament of Mateo
Caballero and that it was executed in accordance
with all the requisites of the law. 9
Undaunted by the said judgment of the probate court, petitioners
elevated the case in the Court of Appeals in CA-G.R. CV No. 19669.
They asserted therein that the will in question is null and void for the
reason that its attestation clause is fatally defective since it fails to
specifically state that the instrumental witnesses to the will witnessed
the testator signing the will in their presence and that they also signed
the will and all the pages thereof in the presence of the testator and of
one another.
On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
complies with Article 805 of the Civil Code, thus:
The question therefore is whether the attestation
clause in question may be considered as having
substantialy complied with the requirements of
Art. 805 of the Civil Code. What appears in the
attestation clause which the oppositors claim to
be defective is "we do certify that the testament
was read by him and the attestator, Mateo
Caballero, has published unto us the foregoing
will consisting of THREE PAGES, including the
acknowledgment,
each
page
numbered
correlatively in letters of the upper part of each
page, as his Last Will and Testament, and he has
signed the same and every page thereof, on the

11

SUCCESSION. SET 7. (cases 92-111)

spaces provided for his signature and on the left
hand margin in the presence of the said testator
and in the presence of each and all of
us (emphasis supplied).
To our thinking, this is sufficient compliance and
no evidence need be presented to indicate the
meaning that the said will was signed by the
testator and by them (the witnesses) in the
presence of all of them and of one another. Or as
the language of the law would have it that the
testator signed the will "in the presence of the
instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another." If not completely or ideally perfect in
accordance with the wordings of Art. 805 but
(sic) the phrase as formulated is in substantial
compliance with the requirement of the law." 11
Petitioners moved for the reconsideration of the said ruling of
respondent court, but the same was denied in the latter's resolution of
January 14, 1992, 12 hence this appeal now before us. Petitioners
assert that respondent court has ruled upon said issue in a manner not
in accord with the law and settled jurisprudence on the matter and are
now questioning once more, on the same ground as that raised before
respondent court, the validity of the attestation clause in the last will
of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly
hereafter, after some prefatory observations which we feel should be
made in aid of the rationale for our resolution of the controversy.
1. A will has been defined as a species of conveyance whereby a
person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate after his
death. 13 Under the Civil Code, there are two kinds of wills which a
testator may execute. 14 the first kind is the ordinary or attested will,
the execution of which is governed by Articles 804 to 809 of the
Code. Article 805 requires that:
Art. 805. Every will, other than a holographic
will, must be subscribed at the end thereof by the
testator himself or by the testator's name written
by some other person in his presence, and by his
express direction, and attested and subscribed by
three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and
every page thereof, except the last, on the left
margin, and all the pages shall be numbered
correlatively in letters placed on the upper part of
each page.
The attestation should state the number of pages
used upon which the will is written, and the fact
that the testator signed the will and every page
thereof, or caused some other person to write his
name, under his express direction, in the presence
of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages
thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not
known to the witness, it shall be interpreted to
them.
In addition, the ordinary will must be acknowledged before a notary
public by a testator and the attesting witness. 15hence it is likewise
known as notarial will. Where the attestator is deaf or deaf-mute,
Article 807 requires that he must personally read the will, if able to

do so. Otherwise, he should designate two persons who would read

the will and communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should be read to
him twice; once, by anyone of the witnesses thereto, and then again,
by the notary public before whom it is acknowledged. 16
The other kind of will is the holographic will, which Article 810
defines as one that is entirely written, dated, and signed by the
testator himself. This kind of will, unlike the ordinary type, requires
no attestation by witnesses. A common requirement in both kinds of
will is that they should be in writing and must have been executed in
a language or dialect known to the testator. 17
However, in the case of an ordinary or attested will, its attestation
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary disposition.
Furthermore, the language used in the attestation clause likewise need
not even be known to the attesting witnesses. 18 The last paragraph of
Article 805 merely requires that, in such a case, the attestation clause
shall be interpreted to said witnesses.
An attestation clause refers to that part of an ordinary will whereby
the attesting witnesses certify that the instrument has been executed
before them and to the manner of the execution the same. 19 It is a
separate memorandum or record of the facts surrounding the conduct
of execution and once signed by the witnesses, it gives affirmation to
the fact that compliance with the essential formalities required by law
has been observed. 20 It is made for the purpose of preserving in a
permanent form a record of the facts that attended the execution of a
particular will, so that in case of failure of the memory of the
attesting witnesses, or other casualty, such facts may still be
proved. 21
Under the third paragraph of Article 805, such a clause, the complete
lack of which would result in the invalidity of the will, 22 should state
(1) the number of the pages used upon which the will is written; (2)
that the testator signed, or expressly caused another to sign, the will
and every page thereof in the presence of the attesting witnesses; and
(3) that theattesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the
will and every page thereof in the presence of the testator and of one
another.
The purpose of the law in requiring the clause to state the number of
pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent
any increase or decrease in the pages; 23 whereas the subscription of
the signature of the testator and the attesting witnesses is made for the
purpose of authentication and identification, and thus indicates that
the will is the very same instrument executed by the testator and
attested to by the witnesses. 24
Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation
clause. 25 The attestation clause, therefore, provide strong legal
guaranties for the due execution of a will and to insure the
authenticity thereof. 26 As it appertains only to the witnesses and not
to the testator, it need be signed only by them. 27 Where it is left
unsigned, it would result in the invalidation of the will as it would be
possible and easy to add the clause on a subsequent occasion in the
absence of the testator and its witnesses. 28
In its report, the Code Commission commented on the reasons of the
law for requiring the formalities to be followed in the execution of
wills, in the following manner:
The underlying and fundamental objectives
permeating the provisions on the law on wills in
this Project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing
his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator.

12

SUCCESSION. SET 7. (cases 92-111)

This objective is in accord with the modern
tendency with respect to the formalities in the
execution of wills. . . . 29
2. An examination of the last will and testament of Mateo Caballero
shows that it is comprised of three sheets all of which have been
numbered correlatively, with the left margin of each page thereof
bearing the respective signatures of the testator and the three attesting
witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is
signed at the foot thereof by the testator. The attestation clause in
question, on the other hand, is recited in the English language and is
likewise signed at the end thereof by the three attesting witnesses
hereto. 30 Since it is the proverbial bone of contention, we reproduce it
again for facility of reference:
We, the undersigned attesting Witnesses, whose
Residences and postal addresses appear on the
Opposite of our respective names, we do hereby
certify that the Testament was read by him and
the testator, MATEO CABALLERO; has
published unto us the foregoing Will consisting
of
THREE
PAGES,
including
the
Acknowledgment,
each
page
numbered
correlatively in the letters on the upper part of
each page, as his Last Will and Testament and he
has the same and every page thereof, on the
spaces provided for his signature and on the left
hand margin, in the presence of the said testator
and in the presence of each and all of us.
It will be noted that Article 805 requires that the witness should both
attest and subscribe to the will in the presence of the testator and of
one another. "Attestation" and "subscription" differ in meaning.
Attestation is the act of senses, while subscription is the act of the
hand. The former is mental, the latter mechanical, and to attest a will
is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe
a paper published as a will is only to write on the same paper the
names of the witnesses, for the sole purpose of identification. 31
In Taboada vs. Rizal, 32 we clarified that attestation consists in
witnessing the testator's execution of the will in order to see and take
note mentally that those things are done which the statute requires for
the execution of a will and that the signature of the testator exists as a
fact. On the other hand, subscription is the signing of the witnesses'
names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. As it involves a
mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed
signed in the presence of the testator and of each other unless this is
substantially expressed in the attestation.
It is contended by petitioners that the aforequoted attestation clause,
in contravention of the express requirements of the third paragraph of
Article 805 of the Civil Code for attestation clauses, fails to
specifically state the fact that the attesting witnesses the testator sign
the will and all its pages in their presence and that they, the witnesses,
likewise signed the will and every page thereof in the presence of the
testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation
clause herein assailed is the fact that while it recites that the testator
indeed signed the will and all its pages in the presence of the three
attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that
said witnesses subscribed their respective signatures to the will in the
presence of the testator and of each other.
The phrase "and he has signed the same and every page thereof, on
the spaces provided for his signature and on the left hand margin,"
obviously refers to the testator and not the instrumental witnesses as
it is immediately preceded by the words "as his Last Will and
Testament." On the other hand, although the words "in the presence
of the testator and in the presence of each and all of us" may, at first

blush, appear to likewise signify and refer to the witnesses, it must,

however, be interpreted as referring only to the testator signing in the
presence of the witnesses since said phrase immediately follows the
words "he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin." What is then
clearly lacking, in the final logical analysis , isthe statement that the
witnesses signed the will and every page thereof in the presence of
the testator and of one another.
It is our considered view that the absence of that statement required
by law is a fatal defect or imperfection which must necessarily result
in the disallowance of the will that is here sought to be admitted to
probate. Petitioners are correct in pointing out that the aforestated
defect in the attestation clause obviously cannot be characterized as
merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance
rule, as contemplated in the pertinent provision thereon in the Civil
Code, to wit:
Art. 809. In the absence of bad faith, forgery, or
fraud, or undue and improper pressure and
influence, defects and imperfections in
the form of attestation or in the language used
therein shall not render the will invalid if it is not
proved that the will was in fact executed and
attested in substantial compliance with all the
requirements of article 805" (Emphasis supplied.)
While it may be true that the attestation clause is indeed subscribed at
the end thereof and at the left margin of each page by the three
attesting witnesses, it certainly cannot be conclusively inferred
therefrom that the said witness affixed their respective signatures in
the presence of the testator and of each other since, as petitioners
correctly observed, the presence of said signatures only establishes
the fact that it was indeed signed, but it does not prove that the
attesting witnesses did subscribe to the will in the presence of the
testator and of each other. The execution of a will is supposed to be
one act so that where the testator and the witnesses sign on various
days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity. 33
We believe that the further comment of former Justice J.B.L.
Reyes 34 regarding Article 809, wherein he urged caution in the
application of the substantial compliance rule therein, is correct and
should be applied in the case under consideration, as well as to future
cases with similar questions:
. . . The rule must be limited to disregarding those
defects that can be supplied by an examination of
the will itself: whether all the pages are
consecutively numbered; whether the signatures
appear in each and every page; whether the
subscribing witnesses are three or the will was
notarized. All theses are facts that the will itself
can reveal, and defects or even omissions
concerning them in the attestation clause can be
safely disregarded. But the total number of
pages, and whether all persons required to sign
did so in the presence of each other must
substantially appear in the attestation clause,
being the only check against perjury in the
probate proceedings. (Emphasis ours.)
3. We stress once more that under Article 809, the defects and
imperfections must only be with respect to the form of the attestation
or the language employed therein. Such defects or imperfections
would not render a will invalid should it be proved that the will was
really executed and attested in compliance with Article 805. In this
regard, however, the manner of proving the due execution and
attestation has been held to be limited to merely an examination of
the will itself without resorting to evidence aliunde, whether oral or
written.
The foregoing considerations do not apply where the attestation
clause totally omits the fact that the attesting witnesses signed each

13

SUCCESSION. SET 7. (cases 92-111)

and every page of the will in the presence of the testator and of each
other. 35 In such a situation, the defect is not only in the form or
language of the attestation clause but the total absence of a specific
element required by Article 805 to be specifically stated in the
attestation clause of a will. That is precisely the defect complained of
in the present case since there is no plausible way by which we can
read into the questioned attestation clause statement, or an
implication thereof, that the attesting witness did actually bear
witness to the signing by the testator of the will and all of its pages
and that said instrumental witnesses also signed the will and every
page thereof in the presence of the testator and of one another.
Furthermore, the rule on substantial compliance in Article 809 cannot
be revoked or relied on by respondents since it presupposes that the
defects in the attestation clause can be cured or supplied by the text
of the will or a consideration of matters apparent therefrom which
would provide the data not expressed in the attestation clause or from
which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied
within the execution of the will. In other words, defects must be
remedied by intrinsic evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been
performed by the attesting witnesses can be supplied by only
extrinsic evidence thereof, since an overall appreciation of the
contents of the will yields no basis whatsoever from with such facts
may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance
with such requirements by the instrumental witnesses, oblivious of
the fact that he is thereby resorting to extrinsic evidence to prove the
same and would accordingly be doing by the indirection what in law
he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was
a divergence of views as to which manner of interpretation should be
followed in resolving issues centering on compliance with the legal
formalities required in the execution of wills. The formal
requirements were at that time embodied primarily in Section 618 of
Act No. 190, the Code of Civil Procedure. Said section was later
amended by Act No. 2645, but the provisions respecting said
formalities found in Act. No. 190 and the amendment thereto were
practically reproduced and adopted in the Civil Code.
One view advance the liberal or substantial compliance rule. This was
first laid down in the case of Abangan vs. Abangan, 36 where it was
held that the object of the solemnities surrounding the execution of
wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and
authenticity. Therefore, the laws on this subject should be interpreted
in such a way as to attain these primordial ends. Nonetheless, it was
also emphasized that one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to
make a will, hence when an interpretation already given assures such
ends, any other interpretation whatsoever that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative
of the testator's last will, must be disregarded. The subsequent cases
of Avera
vs.
Garcia, 37 Aldaba
vs.
Roque, 38 Unson
vs.
39
40
Abella, Pecson vs. Coronel, Fernandez vs. Vergel de Dios, et
al., 41 and Nayve vs. Mojal, et al. 42 all adhered to this position.
The other view which advocated the rule that statutes which prescribe
the formalities that should be observed in the execution of wills are
mandatory in nature and are to be strictly construed was followed in
the subsequent cases ofIn the Matter of the Estate of Saguinsin, 43 In
re Will of Andrada, 44 Uy Coque vs. Sioca, 45 In re Estate of
Neumark, 46and Sano vs. Quintana. 47
Gumban vs. Gorecho, et al., 48 provided the Court with the occasion
to clarify the seemingly conflicting decisions in the aforementioned
cases. In said case of Gumban, the attestation clause had failed to
state that the witnesses signed the will and each and every page
thereof on the left margin in the presence of the testator. The will in
question was disallowed, with these reasons therefor:

In support of their argument on the assignment of

error above-mentioned, appellants rely on a series
of cases of this court beginning with (I)n the
Matter of the (E)state of Saguinsin ([1920], 41
Phil., 875), continuing with In re Will of Andrada
[1921], 42 Phil., 180), Uy Coque vs. Navas L.
Sioca [1922], 43 Phil., 405), and In re Estate of
Neumark ([1923], 46 Phil., 841), and ending
with Sano vs. Quintana([1925], 48 Phil., 506).
Appellee counters with the citation of a series of
cases
beginning
with Abangan
vs.
Abangan ([1919], 40 Phil., 476), continuing
through Aldaba vs. Roque ([1922], 43 Phil., 378),
andFernandez vs. Vergel de Dios ([1924], 46
Phil., 922), and culminating in Nayve vs. Mojal
and Aguilar([1924], 47 Phil., 152). In its last
analysis, our task is to contrast and, if possible,
conciliate the last two decisions cited by
opposing counsel, namely, those of Sano vs.
Quintana, supra, and Nayve vs. Mojal and
Aguilar, supra.
In the case of Sano vs. Quintana, supra, it was
decided that an attestation clause which does not
recite that the witnesses signed the will and each
and every page thereof on the left margin in the
presence of the testator is defective, and such a
defect annuls the will. The case of Uy Coque vs.
Sioca, supra, was cited, but the case of Nayve vs.
Mojal and Aguilar, supra, was not mentioned. In
contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra, wherein it was held that the
attestation clause must estate the fact that the
testator and the witnesses reciprocally saw the
signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is
not stated therein. It was also held that the fact
that the testator and the witnesses signed each
and every page of the will can be proved also by
the mere examination of the signatures appearing
on the document itself, and the omission to state
such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish
previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided
impossible to reconcile the Mojal and Quintana
decisions. They are fundamentally at variance. If
we rely on one, we affirm. If we rely on the other,
we reverse.
In resolving this puzzling question of authority,
three outstanding points may be mentioned. In
the first place, the Mojal, decision was concurred
in by only four members of the court, less than a
majority, with two strong dissenting opinions; the
Quintana decision was concurred in by seven
members of the court, a clear majority, with one
formal dissent. In the second place, the Mojal
decision was promulgated in December, 1924,
while the Quintana decision was promulgated in
December, 1925; the Quintana decision was thus
subsequent in point of time. And in the third
place, the Quintana decision is believed more
nearly to conform to the applicable provisions of
the law.
The right to dispose of property by will is
governed entirely by statute. The law of the case
is here found in section 61 of the Code of Civil
Procedure as amended by Act No. 2645, and in
section 634 of the same Code, as unamended. It
is in part provided in section 61, as amended that
"No will . . . shall be valid . . . unless . . .." It is
further provided in the same section that "The
attestation shall state the number of sheets or

14

SUCCESSION. SET 7. (cases 92-111)

pages used, upon which the will is written, and
the fact that the testator signed the will and every
page thereof, or caused some other person to
write his name, under his express direction, in the
presence of three witnesses, and the latter
witnessed and signed the will and all pages
thereof in the presence of the testator and of each
other." Codal section 634 provides that "The
willshall be disallowed in either of the following
case: 1. If not executed and attested as in this Act
provided." The law not alone carefully makes use
of the imperative, but cautiously goes further and
makes use of the negative, to enforce legislative
intention. It is not within the province of the
courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case
of Sano vs. Quintana, supra, and, to the extent
necessary, modify the decision in the case
of Nayve vs. Mojal and Aguilar, supra.
(Emphases in the original text).
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the seeming
diversity of views that was earlier threshed out therein. The cases
of Quinto vs. Morata, 49Rodriguez vs. Alcala, 50 Enchevarria vs.
Sarmiento, 51 and Testate Estate of Toray 52 went the way of the ruling
as restated in Gumban. But De Gala vs. Gonzales, et al., 53 Rey vs.
Cartagena, 54 De Ticson vs. De Gorostiza, 55 Sebastian vs.
Panganiban, 56 Rodriguez vs. Yap, 57 Grey vs. Fabia, 58 Leynez vs.
Leynez, 59 Martir vs. Martir, 60 Alcala vs. De Villa, 61Sabado vs.
Fernandez, 62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro, 64 veered
away from the strict interpretation rule and established a trend toward
an application of the liberal view.
The Code Commission, cognizant of such a conflicting welter of
views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of
wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:
The present law provides for only one form of
executing a will, and that is, in accordance with
the formalities prescribed by Section 618 of the
Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had
previously upheld the strict compliance with the
legal formalities and had even said that the
provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of
the attestation clause were mandatory, and noncompliance therewith invalidated the will (Uy
Coque vs. Sioca, 43 Phil. 405). These decisions
necessarily restrained the freedom of the testator
in disposing of his property.

liberalization of the manner of executing wills,

article 829 of the Project is recommended, which
reads:
"Art. 829. In the absence of
bad faith, forgery, or fraud, or
undue and improper pressure
and influence, defects and
imperfections in the form of
attestation or in the language
used therein shall not render
the will invalid if it is proved
that the will was in fact
executed and attested in
substantial compliance with
all the requirements of article
829." 65
The so-called liberal rule, the Court said in Gil vs. Murciano, 66 "does
not offer any puzzle or difficulty, nor does it open the door to serious
consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of the document or supply
missing details that should appear in the will itself. They only permit
a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite
formalities of law. This clear, sharp limitation eliminates uncertainty
and ought to banish any fear of dire results."
It may thus be stated that the rule, as it now stands, is that omissions
which can be supplied by an examination of the will itself, without
the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the
will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation
of the attestation clause and ultimately, of the will itself. 67
WHEREFORE, the petition is hereby GRANTED and the impugned
decision of respondent court is hereby REVERSED and SET ASIDE.
The court a quo is accordingly directed to forthwith DISMISS its
Special Proceeding No. 3899-R (Petition for the Probate of the Last
Will and Testament of Mateo Caballero) and to REVIVE Special
Proceeding No. 3965-R (In the matter of the Intestate Estate of Mateo
Caballero) as an active case and thereafter duly proceed with the
settlement of the estate of the said decedent.
SO ORDERED.

However, in recent years the Supreme Court

changed its attitude and has become more liberal
in the interpretation of the formalities in the
execution of wills. This liberal view is enunciated
in the cases ofRodriguez vs. Yap, G.R. No. 45924,
May 18, 1939; Leynez vs. Leynez, G.R. No.
46097, October 18, 1939; Martir vs. Martir, G.R.
No. 46995, June 21, 1940; and Alcala vs. Villa,
G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme
Court, it has practically gone back to the original
provisions of Section 618 of the Code of Civil
Procedure before its amendment by Act No. 2645
in the year 1916. To turn this attitude into a
legislative declaration and to attain the main
objective of the proposed Code in the

15

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES
G. DE JESUS AND BIBIANA ROXAS DE JESUS, SIMEON R.
ROXAS & PEDRO ROXAS DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

the ground that the word "dated" has generally been held to include
the month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be
the holographic Will of Bibiana Roxas de Jesus,
is hereby disallowed for not having been
executed as required by the law. The order of
August 24, 1973 is hereby set aside.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent
Hon. Jose C. Colayco, Presiding Judge Court of First Instance of
Manila, Branch XXI disallowing the probate of the holographic Will
of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus"
was filed by petitioner Simeon R. Roxas, the brother of the deceased
Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to
be the holographic Will of the deceased Bibiana Roxas de Jesus. On
May 26, 1973, respondent Judge Jose Colayco set the hearing of the
probate of the holographic Win on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will
is dated "FEB./61 " and states: "This is my win which I want to be
respected although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the
testimonies of Pedro Roxas de Jesus and Manuel Roxas de Jesus who
likewise testified that the letter dated "FEB./61 " is the holographic
Will of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified her
signature. They further testified that their deceased mother
understood English, the language in which the holographic Will is
written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an
"opposition to probate" assailing the purported holographic Will of
Bibiana R. de Jesus because a it was not executed in accordance with
law, (b) it was executed through force, intimidation and/or under
duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have
intended the said Will to be her last Will and testament at the time of
its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an
order allowing the probate of the holographic Will which he found to
have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration
alleging inter alia that the alleged holographic Will of the deceased
Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should
contain the day, month and year of its execution and that this should
be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on

The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic
will which must be entirely written, dated, and
signed by the hand of the testator himself. It is
subject to no other form, and may be made in or
out of the Philippines, and need not be witnessed.
The petitioners contend that while Article 685 of the Spanish Civil
Code and Article 688 of the Old Civil Code require the testator to
state in his holographic Win the "year, month, and day of its
execution," the present Civil Code omitted the phrase Ao mes y dia
and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will
should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the
New Civil Code in that the date must contain the year, month, and
day of its execution. The respondent contends that Article 810 of the
Civil Code was patterned after Section 1277 of the California Code
and Section 1588 of the Louisiana Code whose Supreme Courts had
consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is
invalid. The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code because
statutes prescribing the formalities to be observed in the execution of
holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and
literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the
Civil Code in the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy
The underlying and fundamental objectives
permeating the provisions of the law on wigs in
this Project consists in the liberalization of the
manner of their execution with the end in view of
giving the testator more freedom in expressing
his last wishes, but with sufficien safeguards and
restrictions to prevent the commission of fraud
and the exercise of undue and improper pressure
and influence upon the testator.
This objective is in accord with the modem
tendency with respect to the formalities in the
execution of wills. (Report of the Code
Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo
Castro v. Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the
testator expressed in his last will and testament
on the ground that any disposition made by the
testator is better than that which the law can

16

SUCCESSION. SET 7. (cases 92-111)

make. For this reason, intestate succession is
nothing more than a disposition based upon the
presumed will of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano
v. Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad
faith and fraud in the exercise thereof is obviated, said Win should be
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,

WHEREFORE, the instant petition is GRANTED. The order

appealed from is REVERSED and SET ASIDE and the order
allowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus is reinstated.
SO ORDERED.

xxx xxx xxx

... More than anything else, the facts and
circumstances of record are to be considered in
the application of any given rule. If the
surrounding circumstances point to a regular
execution of the wilt and the instrument appears
to have been executed substantially in accordance
with the requirements of the law, the inclination
should, in the absence of any suggestion of bad
faith, forgery or fraud, lean towards its admission
to probate, although the document may suffer
from some imperfection of language, or other
non-essential defect. ... (Leynez v. Leynez 68
Phil. 745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the
objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills
has been expounded by this Court in Abangan v. Abanga 40 Phil.
476, where we ruled that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same
day, or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of
the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The
objection interposed by the oppositor-respondent Luz Henson is that
the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be
entertained.
As a general rule, the "date" in a holographic Will should include the
day, month, and year of its execution. However, when as in the case
at bar, there is no appearance of fraud, bad faith, undue influence and
pressure and the authenticity of the Will is established and the only
issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the
principle of substantial compliance.

17

SUCCESSION. SET 7. (cases 92-111)

G.R. Nos. 83843-44

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE

WILL OF MELECIO LABRADOR. SAGRADO LABRADOR
(Deceased), substituted by ROSITA LABRADOR, ENRICA
LABRADOR, and CRISTOBAL LABRADOR, petitionersappellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and
JESUS LABRADOR, respondents-appellees.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic
will of one Melecio Labrador is dated, as provided for in Article
8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of
Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P1652, and the following heirs, namely: Sagrado, Enrica, Cristobal,
Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted
by his heirs), Enrica Labrador and Cristobal Labrador, filed in the
court a quo a petition for the probate docketed as Special Proceeding
No. 922-I of the alleged holographic will of the late Melecio
Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased
but substituted by his heirs), and Gaudencio Labrador filed an
opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that
on September 30, 1971, that is, before Melecio's death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying
in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that as
a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No.
T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of
land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had
already acquired by devise from their father Melecio Labrador under
a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence,
the trial court rendered a joint decision dated February 28, 1985,
allowing the probate of the holographic will and declaring null and
void the Deed of Absolute sale. The court a quo had also directed the
respondents (the defendants in Civil Case No. 934-I) to reimburse to
the petitioners the sum of P5,000.00 representing the redemption
price for the property paid by the plaintiff-petitioner Sagrado with
legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals,
which on March 10, 1988 modified said joint decision of the court a
quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners'
Motion for Reconsideration of the aforesaid decision was denied by

the Court of Appeals, in the resolution of June 13, 1988. Hence, this
petition.
Petitioners now assign the following errors committed by respondent
court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT
ALLOWING AND APPROVING THE PROBATE OF
THE HOLOGRAPHIC WILL OF THE TESTATOR
MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT
THE ORDER OF THE LOWER COURT DIRECTING
THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated
into English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which
is assigned and shared or the partition in favor of
SAGRADO LABRADOR which is the fishpond located
and known place as Tagale.
And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary
at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary
in the West is the sea, known as the SEA as it is, and the
boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now
ninety three (93) years, then I feel it is the right time for me
to partition the fishponds which were and had been bought
or acquired by us, meaning with their two mothers, hence
there shall be no differences among themselves, those
among brothers and sisters, for it is I myself their father
who am making the apportionment and delivering to each
and everyone of them the said portion and assignment so
that there shall not be any cause of troubles or differences
among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of
the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO
LABRADOR, their father.
Now, this is the final disposition that I am making in
writing and it is this that should be followed and complied

18

SUCCESSION. SET 7. (cases 92-111)

with in order that any differences or troubles may be
forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations
among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes,
bamboos and all coconut trees and all others like the other
kind of bamboo by name of Bayog, it is their right to get if
they so need, in order that there shall be nothing that
anyone of them shall complain against the other, and
against anyone of the brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the
said property is located, the same being the fruits of our
earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be
benefitted with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this
writing (WILL) which I am here hereof manifesting of the
truth and of the fruits of our labor which their two mothers,
I am signing my signature below hereof, and that this is
what should be complied with, by all the brothers and
sisters, the children of their two mothers JULIANA
QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL),
and he is, MELECIO LABRADOR y RALUTIN (p.
46, Rollo)

Respondents are in error. The intention to show 17 March 1968 as the

date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador
who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator's
instruction or decision to be followed reveal that Melecio Labrador
was fully aware of the nature of the estate property to be disposed of
and of the character of the testamentary act as a means to control the
disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were
actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus
"redeemed" the property from Navat for P5,000, to immediately
regain possession of the property for its disposition in accordance
with the will. Petitioners therefore deserve to be reimbursed the
P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals
dated March 10, 1988 is hereby REVERSED. The holographic will
of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the
sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.

The petition, which principally alleges that the holographic will is

really dated, although the date is not in its usual place, is impressed
with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the
first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of
the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the
one who made this writing is no other than MELECIO
LABRADOR, their father. (emphasis supplied) (p.
46, Rollo)
The law does not specify a particular location where the date should
be placed in the will. The only requirements are that the date be in the
will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when
the testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution
of the holographic will; hence, the will is more of an "agreement"
between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure
to comply with Article 783 which defines a will 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."

19

SUCCESSION. SET 7. (cases 92-111)

G.R. Nos. 140371-72

November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and

VIRGINIA D. SEANGIO, Petitioners,
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch
21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO,
ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and JAMES D.
SEANGIO, Respondents.
DECISION
AZCUNA, J.:
1

This is a petition for certiorari with application for the issuance of a

writ of preliminary injunction and/or temporary restraining order
seeking the nullification of the orders, dated August 10, 1999 and
October 14, 1999, of the Regional Trial Court of Manila, Branch 21
(the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 9890870 and SP. Proc. No. 99-93396, and entitled, "In the Matter of the
Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al."
and "In the Matter of the Probate of the Will of Segundo C. Seangio
v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A

Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay
naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong
kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa
ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya
nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na si
Merna de los Reyes sa China Bangking Corporation na millon pesos
at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng
malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa
na mga custome[r] ng Travel Center of the Philippines na
pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak
ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo
at si Alfredo Seangio ay hindi ko siya anak at hindi siya makoha
mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng
Manila sa harap ng tatlong saksi. 3

The facts of the cases are as follows:

(signed)

On September 21, 1988, private respondents filed a petition for the

settlement of the intestate estate of the late Segundo Seangio,
docketed as Sp. Proc. No. 9890870 of the RTC, and praying for the
appointment of private respondent Elisa D. SeangioSantos as special
administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Segundo Seangio

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio,

opposed the petition. They contended that: 1) Dy Yieng is still very
healthy and in full command of her faculties; 2) the deceased
Segundo executed a general power of attorney in favor of Virginia
giving her the power to manage and exercise control and supervision
over his business in the Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of the estate of Segundo
because she is a certified public accountant; and, 4) Segundo left a
holographic will, dated September 20, 1995, disinheriting one of the
private respondents, Alfredo Seangio, for cause. In view of the
purported holographic will, petitioners averred that in the event the
decedent is found to have left a will, the intestate proceedings are to
be automatically suspended and replaced by the proceedings for the
probate of the will.

Dy Yieng Seangio (signed)

On April 7, 1999, a petition for the probate of the holographic will of

Segundo, docketed as SP. Proc. No. 9993396, was filed by
petitioners before the RTC. They likewise reiterated that the probate
proceedings should take precedence over SP. Proc. No. 9890870
because testate proceedings take precedence and enjoy priority over
intestate proceedings.2
The document that petitioners refer to as Segundos holographic will
is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman

Nilagdaan sa harap namin

(signed)

Unang Saksi ikalawang saksi

(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870
and SP. Proc. No. 9993396 were consolidated.4
On July 1, 1999, private respondents moved for the dismissal of the
probate proceedings5 primarily on the ground that the document
purporting to be the holographic will of Segundo does not contain
any disposition of the estate of the deceased and thus does not meet
the definition of a will under Article 783 of the Civil Code.
According to private respondents, the will only shows an alleged act
of disinheritance by the decedent of his eldest son, Alfredo, and
nothing else; that all other compulsory heirs were not named nor
instituted as heir, devisee or legatee, hence, there is preterition which
would result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to rule
only on the extrinsic validity of the will, it is not barred from delving
into the intrinsic validity of the same, and ordering the dismissal of
the petition for probate when on the face of the will it is clear that it
contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending
that: 1) generally, the authority of the probate court is limited only to

20

SUCCESSION. SET 7. (cases 92-111)

a determination of the extrinsic validity of the will; 2) private
respondents question the intrinsic and not the extrinsic validity of the
will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because
Segundos will does not constitute a universal heir or heirs to the
exclusion of one or more compulsory heirs.6
On August 10, 1999, the RTC issued its assailed order, dismissing the
petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners
Dy Yieng Seangio, et al., clearly shows that there is preterition, as the
only heirs mentioned thereat are Alfredo and Virginia. [T]he other
heirs being omitted, Article 854 of the New Civil Code thus applies.
However, insofar as the widow Dy Yieng Seangio is concerned,
Article 854 does not apply, she not being a compulsory heir in the
direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The Supreme
Court in the case of Acain v. Intermediate Appellate Court [155
SCRA 100 (1987)] has made its position clear: "for respondents to
have tolerated the probate of the will and allowed the case to progress
when, on its face, the will appears to be intrinsically void would
have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied
its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will
was resolved(underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special
Proceedings No. 9993396 is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED.7
Petitioners motion for reconsideration was denied by the RTC in its
order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW
AND JURISPRUDENCE IN ISSUING THE QUESTIONED
ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF
COURT ON THE PROPER PROCEDURE FOR SETTING THE
CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF
THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE
CASE ON THE ALLEGED GROUND THAT THE TESTATORS
WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE
OF PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A
SETTLED RULE THAT THE AUTHORITY OF PROBATE
COURTS IS LIMITED ONLY TO A DETERMINATION OF THE
EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE
EXECUTION THEREOF, THE TESTATORS TESTAMENTARY

CAPACITY AND THE COMPLIANCE WITH THE REQUISITES

OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE
INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATORS WILL
THAT NO PRETERITON EXISTS AND THAT THE WILL IS
BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING
THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS
TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule
76 of the Rules of Court which respectively mandate the court to: a)
fix the time and place for proving the will when all concerned may
appear to contest the allowance thereof, and cause notice of such time
and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause
the mailing of said notice to the heirs, legatees and devisees of the
testator Segundo;
Second, the holographic will does not contain any institution of an
heir, but rather, as its title clearly states,Kasulatan ng Pag-Aalis ng
Mana, simply contains a disinheritance of a compulsory heir. Thus,
there is no preterition in the decedents will and the holographic will
on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and
private respondents alike, with the sole exception of Alfredo, to
inherit his estate. None of the compulsory heirs in the direct line of
Segundo were preterited in the holographic will since there was no
institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the
holographic will that it is both intrinsically and extrinsically valid,
respondent judge was mandated to proceed with the hearing of the
testate case; and,
Lastly, the continuation of the proceedings in the intestate case will
work injustice to petitioners, and will render nugatory the
disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by
petitioners was dated, signed and written by him in his own
handwriting. Except on the ground of preterition, private respondents
did not raise any issue as regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana,
unmistakably showed Segundos intention of excluding his eldest
son, Alfredo, as an heir to his estate for the reasons that he cited
therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires
that the same must be effected through a will wherein the legal cause
therefor shall be specified. With regard to the reasons for the
disinheritance that were stated by Segundo in his document, the

21

SUCCESSION. SET 7. (cases 92-111)

Court believes that the incidents, taken as a whole, can be considered
a form of maltreatment of Segundo by his son, Alfredo, and that the
matter presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1) When a child or descendant has been found guilty of an
attempt against the life of the testator, his or her spouse,
descendants, or ascendants;
(2) When a child or descendant has accused the testator of a
crime for which the law prescribes imprisonment for six
years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of
adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence,
intimidation, or undue influence causes the testator to make
a will or to change one already made;
(5) A refusal without justifiable cause to support the parents
or ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the
child or descendant;8
(7) When a child or descendant leads a dishonorable or
disgraceful life;
(8) Conviction of a crime which carries with it the penalty
of civil interdiction.
Now, the critical issue to be determined is whether the document
executed by Segundo can be considered as a holographic will.

into account the circumstances surrounding the execution of the

instrument and the intention of the testator.12 In this regard, the Court
is convinced that the document, even if captioned as Kasulatan ng
Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in
the form of a holographic will. Unless the will is probated, 13 the
disinheritance cannot be given effect.14
With regard to the issue on preterition, 15 the Court believes that the
compulsory heirs in the direct line were not preterited in the will. It
was, in the Courts opinion, Segundos last expression to bequeath his
estate to all his compulsory heirs, with the sole exception of Alfredo.
Also, Segundo did not institute an heir16 to the exclusion of his other
compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute her
as the universal heir. Her name was included plainly as a witness to
the altercation between Segundo and his son, Alfredo.1wphi1
Considering that the questioned document is Segundos holographic
will, and that the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides
that no will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory.17
In view of the foregoing, the trial court, therefore, should have
allowed the holographic will to be probated. It is settled that testate
proceedings for the settlement of the estate of the decedent take
precedence over intestate proceedings for the same purpose. 18
WHEREFORE, the petition is GRANTED. The Orders of the
Regional Trial Court of Manila, Branch 21, dated August 10, 1999
and October 14, 1999, are set aside. Respondent judge is directed to
reinstate and hear SP Proc. No. 99-93396 for the allowance of the
holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the
aforesaid testate proceedings.
No costs.

A holographic will, as provided under Article 810 of the Civil Code,

must be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form, and may be made in or out of
the Philippines, and need not be witnessed.

SO ORDERED.

Segundos document, although it may initially come across as a mere

disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed by
the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument,
and while it does not make an affirmative disposition of the latters
property, the disinheritance of Alfredo, nonetheless, is an act of
disposition in itself. In other words, the disinheritance results in the
disposition of the property of the testator Segundo in favor of those
who would succeed in the absence of Alfredo.10
Moreover, it is a fundamental principle that the intent or the will of
the testator, expressed in the form and within the limits prescribed by
law, must be recognized as the supreme law in succession. All rules
of construction are designed to ascertain and give effect to that
intention. It is only when the intention of the testator is contrary to
law, morals, or public policy that it cannot be given effect. 11
Holographic wills, therefore, being usually prepared by one who is
not learned in the law, as illustrated in the present case, should be
construed more liberally than the ones drawn by an expert, taking

22

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP

deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for
appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties
in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the
Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in
these words:

After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to make a
will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness,
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.

Nobyembre 5, 1951.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Rosario Gan Jimenez, a niece. To these she showed the will, again in
the presence of Felina Esguerra, who read it for the third time.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan
ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:

Vicente Esguerra, Sr. .............................................

5 Bahagi

Fausto E. Gan .........................................................

2 Bahagi

Rosario E. Gan .........................................................

2 Bahagi

Filomena Alto ..........................................................

1 Bahagi

Beatriz Alto ..............................................................

1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba

panglugar ay aking ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin sa
halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted

that the deceased had not left any will, nor executed any testament
during her lifetime.

When on November 19, 1951, Felicidad was confined at the U.S.T.

Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the
will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had
been suffering from heart disease for several years before her death;
that she had been treated by prominent physicians, Dr. Agerico Sison,
Dr. Agustin Liboro and others; that in May 1950 husband and wife
journeyed to the United States wherein for several weeks she was
treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most
serious of which happened in the early morning of the first Monday
of November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and of by the Yap spouses. Physician's help was
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found
the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole
day, her husband and her personal attendant, Mrs. Bantique,
constantly at her side. These two persons swore that Mrs. Felicidad
Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it
is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will,
when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal
the will from her husband she would carry it around, even to the

23

SUCCESSION. SET 7. (cases 92-111)

hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the
purse from Felina in the U.S.T. Hospital and that the will was there, it
is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided
not on the weakness of the opposition but on the strength of the
evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills
along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing
the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of
the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901 to
1950) required wills to be subscribed by the testator and three
credible witnesses in each andevery page; such witnesses to attest to
the number of sheets used and to the fact that the testator signed in
their presence and that they signed in the presence of the testator and
of each other.
The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator
would succeed him and be benefited with the probate of same.
(Mendozavs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be
fulfilled when such will is submitted to the courts for allowance. For
that purpose the testimony of one of the subscribing witnesses would
be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and
the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself as material proof of authenticity,
and as its own safeguard, since it could at any time, be demonstrated
to be or not to be in the hands of the testator himself. "In the
probate of a holographic will" says the New Civil Code, "it shall be
necessary that at least one witness who knows the handwriting and
signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting)
and if the court deem it necessary, expert testimony may be resorted
to."

The witnesses so presented do not need to have seen the execution of

the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And then
the only guaranty of authenticity3 the testator's handwriting has
disappeared.
Therefore, the question presents itself, may a holographic will be
probated upon the testimony of witnesses who have allegedly seen it
and who declare that it was in the handwriting of the testator? How
can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the
will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no
pains to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a
document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to
testify as to the handwriting could be tested by exhibiting to them
other writings sufficiently similar to those written by the deceased;
but what witness or lawyer would not foresee such a move and
prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has
seen and read a document which he believed was in the deceased's
handwriting. And the court and the oppositor would practically be at
the mercy of such witness (or witnesses) not only as to the execution,
but also as to the contents of the will. Does the law permit such a
situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary evidence the
testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New
Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4 an implied
admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be filed (Art. 693).
All these, imply presentation of the will itself. Art. 692 bears the
same implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be summoned
so that they may make "any statement they may desire to submit with
respect to the authenticity of the will." As it is universally admitted
that the holographic will is usually done by the testator and by
himself alone, to prevent others from knowing either its execution or
its contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but
whether in the face of the document itself they think the testator wrote

24

SUCCESSION. SET 7. (cases 92-111)

it. Obviously, this they can't do unless the will itself is presented to
the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the
choice of either complying with the will if they think it authentic, or
to oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the relatives
may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with
the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the
document itself--in the decision of the Supreme Court of Spain of
June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words
having been torn from it. Even in the face of allegations and
testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal
declared that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be presented;
otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en
el parrafo segundo del articulo 688 del Codigo civil, que
para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del
ao, mes y dia en que se otorque, resulta evidente que para
la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que de
la expresada redaccion el precepto legal, y por el tiempo
en que el verbo se emplea, se desprende la necesidad de
que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para
au adveracion y protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estarfirmado por el
testador, cualquiera que sea la causa de la falta de firma, y
sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su castigo
en via criminal si procediere, por constituir dicha omision
un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo,
titulo V, ley 15--E depues que los herederos e sus fijos
ovieren esta manda, fasta ... annos muestrenla al obispo de
la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su
mano daquel que fizo la manda; e por aquellos escriptos, si
semjara la letra de la manda, sea confirmada la manda. E
depues que todo esto fuere connoscido, el obispo o el juez,
o otras testimonios confirmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689, Scaevola-Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the
property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo
V, page 555).

Taking all the above circumstances together, we reach the conclusion

that the execution and the contents of a lost or destroyed holographic
will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to
explain why, unlike holographic wills, ordinary wills may be proved
by testimonial evidence when lost or destroyed. The difference lies in
the nature of the wills. In the first, the only guarantee of authenticity
is the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three
witnesses (four with the notary) deliberately to lie. And then their lies
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator,
their intimacy with the testator, etc. And if they were intimates or
trusted friends of the testator they are not likely to end themselves to
any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and
credible witnesses see and read the forgery; and the latter, having no
interest, could easily fall for it, and in court they would in all good
faith affirm its genuineness and authenticity. The will having been
lost the forger may have purposely destroyed it in an "accident"
the oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of
them need be signed, the substitution of the unsigned pages, which
may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature feasibility of forgery would be added to
the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators
and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion
which can not be tested in court, nor directly contradicted by the
oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find
ourselves sharing the trial judge's disbelief. In addition to the dubious
circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a
share, or threaten to reveal its execution to her husband Ildefonso
Yap. And this leads to another point: if she wanted so much to
conceal the will from her husband, why did she not entrust it to her
beneficiaries? Opportunity to do so was not lacking: for instance, her
husband's trip to Davao, a few days after the alleged execution of the
will.
In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted by
herein petitioner is so tainted with improbabilities and inconsistencies

25

SUCCESSION. SET 7. (cases 92-111)

that it fails to measure up to that "clear and distinct" proof required
by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

26

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE
WILL OF RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
LORENZO SUMULONG, intervenor.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for
final determination pursuant to Section 3, Rule 50 of the Rules of
Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the
Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as
Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the following grounds:

... It is our considered opinion that once the original copy of

the holographic will is lost, a copy thereof cannot stand in
lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic wills
the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more
than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the
will could not be located shows to our mind that the
decedent had discarded before his death his allegedly
missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal
to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on
the ground that the appeal does not involve question of fact and
alleged that the trial court committed the following assigned errors:

(1) Appellant was estopped from claiming that the deceased

left a will by failing to produce the will within twenty days
of the death of the testator as required by Rule 75, section 2
of the Rules of Court;

I. THE LOWER COURT ERRED IN HOLDING

THAT A LOST HOLOGRAPHIC WILL MAY
NOT BE PROVED BY A COPY THEREOF;

(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not
a will

II. THE LOWER COURT ERRED IN

HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;

(3) The alleged hollographic will itself,and not an alleged

copy thereof, must be produced, otherwise it would
produce no effect, as held in Gam v. Yap, 104 Phil. 509;
and

III. THE LOWER COURT ERRED

DISMISSING APPELLANT'S WILL.

(4 ) The deceased did not leave any will, holographic or

otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the
case with another case Sp. Proc. No, 8275). Their motion
was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the
cases, the appellees moved again to dismiss the petition for
the probate of the will. They argued that:
(1) The alleged holographic was not a last will but merely
an instruction as to the management and improvement of
the schools and colleges founded by decedent Ricardo B.
Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved
by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss
was denied by the court in its order of February 23, 1979.
The appellees then filed a motion for reconsideration on the
ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to
which the appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo
B. Bonilla. The court said:

IN

The only question here is whether a holographic will which was lost
or cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic
wills is the allowance of the will by the court after its due execution
has been proved. The probate may be uncontested or not. If
uncontested, at least one Identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least
three Identifying witnesses are required. However, if the holographic
will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator
and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the contents
of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will
itself must be presented; otherwise, it shall produce no effect. The
law regards the document itself as material proof of authenticity."
But, in Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court," Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the deceased can
be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979,
denying appellant's motion for reconsideration dated August 9, 1979,
of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.

27

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-14003

August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by
the petitioner; that on September 9, 1957, Fortunata S. Vda.
de Yance died at 13 Luskot, Quezon City, known to be the
last residence of said testatrix; that Francisco Azaola,
petitioner herein for probate of the holographic will,
submitted the said holographic will (Exh. C) whereby
Maria Milagros Azaola was made the sole heir as against
the nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the
testatrix, as the same was handed to him and his wife; that
the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special power
of the attorney (Exh. F), and the general power of attorney
(Exh. F-1), besides the deeds of sale (Exhs. G and G-1)
including an affidavit (Exh. G-2), and that there were
further exhibited in court two residence certificates (Exhs.
H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified
that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix
as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix
as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must have
been written by her" (t.s.n., p. 11). However, on page 16 on
the same transcript of the stenographic notes, when the
same witness was asked by counsel if he was familiar with
the penmanship and handwriting of the deceased Fortunata
Vda. de Yance, he answered positively in the affirmative
and when he was asked again whether the penmanship
referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he
answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the
testatrix, the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily

require the production of three witnesses to identify the handwriting

and signature of a holographic will, even if its authenticity should be
denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following
effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested,
we are of the opinion that Article 811 of our present Civil Code can
not be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at
the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding
and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator".
There may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of Article 811 may
thus become an impossibility. That is evidently the reason why the
second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary
testaments, precisely because the presence of at least three witnesses
at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence.
On the other hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and in fact it
should, resort to handwriting experts. The duty of the Court, in fine,
is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be
carried into effect.

28

SUCCESSION. SET 7. (cases 92-111)

Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol.
12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre
acerca de la autenticidad del testamento olografo, aunque
ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez
debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento
olografo lo hace necesario para mayor garantia de todos los
interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this
Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving
the parties ample opportunity to adduce additional evidence,
including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.

29

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been
established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that
after plaintiff has completed presentation of his evidence
and the defendant files a motion for judgment on demurrer
to evidence on the ground that upon the facts and the law
plaintiff has shown no right to relief, if the motion is
granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf
(Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the holographic
will of the testator Matilde Seo Vda. de Ramonal. 2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seo Vda. de Ramonal, filed with the Regional
Trial Court, Misamis Oriental, Branch 18, a petition 3 for probate of
the holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo
Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seo Vda. de Ramonal
executed the holographic will.

On November 26, 1990, the lower Court issued an order, the

dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the
Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late
Matilde Seo Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in
support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we
recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the
signature of the deceased, Matilde Seo Vda. de Ramonal, for the
purpose of laying the basis for comparison of the handwriting of the
testatrix, with the writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented
to produced and identify the voter's affidavit of the decedent.
However, the voters' affidavit was not produced for the same was
already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo
Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11)
years from 1958 to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde
Seo Vda. de Ramonal) in collecting rentals from her various tenants
of commercial buildings, and deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased
in posting the records of the accounts, and carried personal letters of
the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the
death of Matilde Vda. de Ramonal, she left a holographic will dated
August 30, 1978, which was personally and entirely written, dated
and signed, by the deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City
Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all
the pleadings and documents signed by the deceased in connection
with the proceedings of her late husband, as a result of which he is
familiar with the handwriting of the latter. He testified that the
signature appearing in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

Petitioners argued that the repeated dates incorporated or appearing

on will after every disposition is out of the ordinary. If the deceased
was the one who executed the will, and was not forced, the dates and
the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was
procured by undue and improper pressure and influence on the part of
the beneficiaries, or through fraud and trickery.1wphi1.nt

The fifth witness presented was Mrs. Teresita Vedad, an employee of

the Department of Environment and Natural Resources, Region 10.
She testified that she processed the application of the deceased for
pasture permit and was familiar with the signature of the deceased,
since the signed documents in her presence, when the latter was
applying for pasture permit.

Respondents presented six (6) witnesses and various documentary

evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic
will of the deceased Matilde Seo Vda. de Ramonal.

Finally, Evangeline Calugay, one of the respondents, testified that she

had lived with the deceased since birth, and was in fact adopted by
the latter. That after a long period of time she became familiar with
the signature of the deceased. She testified that the signature
appearing in the holographic will is the true and genuine signature of
Matilde Seo Vda. de Ramonal.

30

SUCCESSION. SET 7. (cases 92-111)

The holographic will which was written in Visayan, is translated in
English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline
Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at
Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:

. . . even if the genuineness of the holographic will were

contested, we are of the opinion that Article 811 of our
present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at
the execution of the holographic will, none being required
by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses
"who know the handwriting and signature of the testator"
and who can declare (truthfully, of course, even if the law
does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available
witness acquainted with the testator's hand; or even if so
familiarized, the witness maybe unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of article
811 may thus become an impossibility. That is evidently the
reason why the second paragraph of article 811 prescribes
that
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.

1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol,
Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
Village in favor of Evangeline R. Calugay, Helen must
continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling
that the appeal was meritorious. Citing the decision in the case
of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:

As can be see, the law foresees, the possibility that no

qualified witness ma be found (or what amounts to the
same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for
resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that
three witnesses be presented if the will is contested and
only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments,
precisely because the presence of at least three witnesses at
the execution of ordinary wills is made by law essential to
their validity (Art. 805). Where the will is holographic, no
witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested
as the proponent that the true intention of the testator be
carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of
the holographic will were contested, Article 811 of the civil
code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting
of the testator, under penalty of the having the probate
denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of
three witnesses is merely permissive. What the law deems
essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry,
for the state is as much interested in the proponent that the
true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be

31

SUCCESSION. SET 7. (cases 92-111)

drawn from a party's failure to offer expert evidence, until
and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.10

occupation or how did Matilde Vda de Ramonal keep

herself busy that time?
A. Collecting rentals.

According to the Court of Appeals, Evangeline Calugay, Matilde

Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.

Q. From where?

Thus, upon the unrebutted testimony of appellant Evangeline

Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the handwriting
and signature therein, and allowed the will to probate.

xxx

A. From the land rentals and commercial buildings at

Pabayo-Gomez streets.12
xxx

xxx

Q. Who sometime accompany her?

Hence, this petition.
A. I sometimes accompany her.
The petitioners raise the following issues:
Q. In collecting rentals does she issue receipts?
(1) Whether or not the ruling of the case of Azaola
vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case.

A. Yes, sir.13
xxx

(2) Whether or not the Court of Appeals erred in holding

that private respondents had been able to present credible
evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not
analyzing the signatures in the holographic will of Matilde
Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested holographic
will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the
Civil Code is mandatory. The word "shall" connotes a mandatory
order. We have ruled that "shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of discretion
and that the presumption is that the word "shall," when used in a
statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish
the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of
testator. In the case of Augusto Neri, clerk of court, Court of First
Instance, Misamis Oriental, he merely identified the record of Special
Proceedings No. 427 before said court. He was not presented to
declare explicitly that the signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the voter's
affidavit, which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de
Ramonal resided with your parents at Pinikitan, Cagayan
de Oro City. Would you tell the court what was your

xxx

xxx

Q. Showing to you the receipt dated 23 October 1979, is

this the one you are referring to as one of the receipts which
she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De
Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda.
De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you
know Matilde vda de Ramonal kept records of the accounts
of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in
behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this
reflected?
A. In handwritten.14
xxx

xxx

xxx

Q. In addition to collection of rentals, posting records of

accounts of tenants and deed of sale which you said what
else did you do to acquire familiarity of the signature of
Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?

32

SUCCESSION. SET 7. (cases 92-111)

A. Matilde.

Q. For what purpose?

Q. To whom?

A. Just to seek advice.

A. To her creditors.15

Q. Advice of what?

xxx

xxx

xxx

Q. You testified that at time of her death she left a will. I

am showing to you a document with its title "tugon" is this
the document you are referring to?
A. Yes, sir.
Q.
Showing to you this exhibit "S", there is that
handwritten "tugon", whose handwriting is this?

A. About the will.18

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

A. My Aunt.

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not

yet a sickly person is that correct?

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

A. Yes, sir.

A. Because I am familiar with her signature. 16

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

What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal belongings
of the deceased but was in the possession of Ms. Binanay. She
testified that:
Q. Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a
will you said, yes?

A. Yes, sir.19
xxx

xxx

xxx

Q. Now, let us go to the third signature of Matilde

Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.

A. Yes, sir.

Q. And also in Matilde the letter L is continued to letter

D?

Q. Who was in possession of that will?

A. Yes, sir.

A. I.

Q. Again the third signature of Matilde Vda de Ramonal

the letter L in Matilde is continued towards letter D.

Q. Since when did you have the possession of the will?

A. Yes, sir.
A. It was in my mother's possession.
Q. And there is a retracing in the word Vda.?
Q. So, it was not in your possession?
A. Yes, sir.20
A. Sorry, yes.
xxx
Q. And when did you come into possession since as you
said this was originally in the possession of your mother?
A. 1985.17
xxx

xxx

xxx

xxx

xxx

Q. Now, that was 1979, remember one year after the

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

Q. Now, Mrs. Binanay was there any particular reason

why your mother left that will to you and therefore you
have that in your possession?

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

exhausted.

A. It was not given to me by my mother, I took that in the

aparador when she died.

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

Q. After taking that document you kept it with you?

A. In writing.

A. I presented it to the fiscal.

33

SUCCESSION. SET 7. (cases 92-111)

Q. How did you know that she was exhausted when you
were not present and you just tried to explain yourself out
because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978,
the same year as the alleged holographic will. In exhibit I,
you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid
movement. . . . And in fact, the name Eufemia R. Patigas
here refers to one of the petitioners?

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the
husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24

A. Yes, sir.

xxx

Q. You will also notice Mrs. Binanay that it is not only

with the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the hesitancy
and tremors, do you notice that?

Q. Can you tell this court whether the spouses Justo

Ramonal and Matilde Ramonal have legitimate children?

Evangeline Calugay declared that the holographic will was written,

dated and signed in the handwriting of the testator. She testified that:

xxx

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

xxx

A. Yes, sir.21

xxx

xxx

xxx

Q. You said after becoming a lawyer you practice your

profession? Where?
A. Here in Cagayan de Oro City.

Q. You testified that you stayed with the house of the

spouses Matilde and Justo Ramonal for the period of 22
years. Could you tell the court the services if any which
you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to
market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the
bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?

Q. Do you have services rendered with the deceased

Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any
sort of counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the
property, which was under the court before.26
xxx

xxx

xxx

Q. In the course of your stay for 22 years did you acquire

familiarity of the handwriting of Matilde Vda de Ramonal?

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

A. Yes, sir.

A. That is the signature of Matilde Vda de Ramonal.

Q. How come that you acquired familiarity?

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

A. Because I lived with her since birth.22

A. This one here that is the signature of Mrs. Matilde vda

de Ramonal.27

A. I used to be her personal driver.

xxx

xxx

xxx
xxx

Q. Now, I am showing to you Exhibit S which is

captioned "tugon" dated Agosto 30, 1978 there is a
signature here below item No. 1, will you tell this court
whose signature is this?

xxx

xxx

Q. Aside from attending as counsel in that Special

Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived
with her since birth. She never declared that she saw the deceased
write a note or sign a document.

A. I can not remember if I have assisted her in other

matters but if there are documents to show that I have
assisted then I can recall.28
xxx

xxx

xxx

Q. Now, I am showing to you exhibit S which is titled

"tugon", kindly go over this document, Fiscal Waga and tell
the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?

34

SUCCESSION. SET 7. (cases 92-111)

A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is
this?
A. I think this signature here it seems to be the signature
of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of
Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the
project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda
de Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature
of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being
written.
Q. How about this signature in item no. 4, can you tell the
court whose signature is this?

was in her possession as early as 1985, or five years before the death
of the deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature
in the holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written by
the testator. The signature of the testator in some of the disposition is
not readable. There were uneven strokes, retracing and erasures on
the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980, 34 and a
letter dated June 16, 1978, 35 the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We,
therefore, cannot be certain that ruling holographic will was in the
handwriting by the deceased.

A. The same is true with the signature in item no. 4. It

seems that they are similar.29

IN VIEW WHEREOF, the decision appealed from is SET ASIDE.

The records are ordered remanded to the court of origin with
instructions to allow petitioners to adduce evidence in support of their
opposition to the probate of the holographic will of the deceased
Matilde Seo vda. de Ramonal.1wphi1.nt

xxx

No costs.

xxx

xxx

Q. Mr. Prosecutor, I heard you when you said that the

signature of Matilde Vda de Ramonal Appearing in exhibit
S seems to be the signature of Matilde vda de Ramonal?

SO ORDERED.

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that it
seems to be her signature because it is similar to the
signature of the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of three
witnesses in case of contested holographic will, citing the decision
in Azaola vs. Singson,31ruling that the requirement is merely directory
and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of
the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a way as to attain
these primordial ends. But on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but
with one of the respondents, who kept it even before the death of the
deceased. In the testimony of Ms. Binanay, she revealed that the will

35

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 106720 September 15, 1994

xxx xxx xxx

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.

While the fact that it was entirely written, dated

and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic
will in question was indeed written entirely, dated
and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly
shown knowledge of the handwriting of the
testatrix have been presented and have explicitly
and categorically identified the handwriting with
which the holographic will in question was
written to be the genuine handwriting and
signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the
holographic will be entirely written, dated and
signed in the handwriting of the testatrix has been
complied with.

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

xxx xxx xxx

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

36

SUCCESSION. SET 7. (cases 92-111)

Considering then that it is a well-established
doctrine in the law on succession that in case of
doubt, testate succession should be preferred over
intestate succession, and the fact that no
convincing grounds were presented and proven
for the disallowance of the holographic will of
the late Annie Sand, the aforesaid will submitted
herein must be admitted to probate. 3 (Citations
omitted.)

(3) If it was executed through

force or under duress, or the
influence of fear, or threats;

On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
holographic will fails to meet the requirements for its validity." 4 It
held that the decedent did not comply with Articles 813 and 814 of
the New Civil Code, which read, as follows:

(5) If the signature of the

testator was procured by
fraud;

Art. 813: When a number of dispositions

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

(4) If it was procured by

undue and improper pressure
and influence, on the part of
the beneficiary or of some
other person;

(6) If the testator acted by

mistake or did not intend that
the instrument he signed
should be his will at the time
of affixing his signature
thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the
only issues to be resolved are: (1) whether the instrument submitted
is, indeed, the decedent's last will and testament; (2) whether said will
was executed in accordance with the formalities prescribed by law;
(3) whether the decedent had the necessary testamentary capacity at
the time the will was executed; and, (4) whether the execution of the
will and its signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will
of Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate
of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the
execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain
these primordial ends. But, on the other hand,
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustrative of the
testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and acknowledgment
requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus:
A person may execute a holographic will which
must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed.
(Emphasis supplied.)
Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is
unquestionably handwritten by the testator.

37

SUCCESSION. SET 7. (cases 92-111)

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

oppositor Dr. Jose Ajero to question her conveyance of the same in its
entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated
March 30, 1992, is REVERSED and SET ASIDE, except with
respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of
decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Footnote:
10 It must be noted, however, that in Kalaw, this Court laid down an
exception to the general rule, when it invalidated the entire will
because of an unauthenticated erasure made by the testator. In that
case, the will had only one substantial provision. This was altered by
substituting the original heir with another , with such alteration being
unauthenticated. This was altered by substituting the original heir
with another, with such alteration being unauthenticated. This Court
held that the whole will was void "for the simple reason that nothing
remains in the Will after (the provision is invalidated) which could
remain valid. To state that the Will as first written should be given
efficacy is to disregard the seeming change of mind of the testatrix.
But, that change of mind can neither be given effect because she
failed to authenticate it in the manner required by law by affixing her
full signature."

Art. 678: A will is called holographic when the

testator writes it himself in the form and with the
requisites required in Article 688.
Art. 688: Holographic wills may be executed
only by persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator
and signed by him, and must contain a statement
of the year, month and day of its execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify them
over his signature.
Foreigners may execute holographic wills in their
own language.
This separation and distinction adds support to the interpretation that
only the requirements of Article 810 of the New Civil Code and
not those found in Articles 813 and 814 of the same Code are
essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could
not validly dispose of the house and lot located in Cabadbaran,
Agusan del Norte, in its entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain
provisions of the will. 11 In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led

38

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the
CFI of Batangas, Branch VI, Lipa City, and GREGORIO K.
KALAW, respondents..
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament

The Court finds, therefore, that the provision of

Article 814 of the Civil Code is applicable to
Exhibit "C". Finding the insertions, alterations
and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix
Natividad K. Kalaw, the Court will deny the
admission to probate of Exhibit "C".
WHEREFORE, the petition to probate Exhibit
"C" as the holographic will of Natividad K.
Kalaw is hereby denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to
probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil
Code being , clear and explicit, (it) requires no necessity for
interpretation."

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident
of Lipa City, being of sound and disposing mind and memory, do
hereby declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic
church of Lipa City. In accordance with the rights of said Church, and
that my executrix hereinafter named provide and erect at the expose
of my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a
sister of the testatrix as her sole heir. Hence, on November 10, 1971,
petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of
the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will the
testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written,
should be given effect and probated so that she could be the sole heir
thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination.
The NBI reported that the handwriting, the
signature, the insertions and/or additions and the
initial were made by one and the same person.
Consequently, Exhibit "C" was the handwriting
of the decedent, Natividad K. Kalaw. The only
question is whether the win, Exhibit 'C', should
be admitted to probate although the alterations
and/or insertions or additions above-mentioned
were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code.
The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their
counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties
did not agree, nor was it impliedly understood,
that the oppositors would be in estoppel.

From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed
this Petition for Review on certiorari on the sole legal question of
whether or not theoriginal unaltered text after subsequent alterations
and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be
probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will litem not
been noted under his signature, ... the Will is not thereby invalidated
as a whole, but at most only as respects the particular words erased,
corrected or interlined.1 Manresa gave an Identical commentary
when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de
Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had
only one substantial provision, which was altered by substituting the
original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the
effect must be that the entire Will is voided or revoked for the simple
reason that nothing remains in the Will after that which could remain
valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that
change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full
signature,
The ruling in Velasco, supra, must be held confined to such
insertions, cancellations, erasures or alterations in a holographic Will,
which affect only the efficacy of the altered words themselves but not
the essence and validity of the Will itself. As it is, with the erasures,
cancellations and alterations made by the testatrix herein, her real
intention cannot be determined with certitude. As Manresa had stated
in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del
Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga
palabras tachadas, enmendadas o entre renglones
no salvadas por el testador bajo su firnia segun
previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la
validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las
condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a

39

SUCCESSION. SET 7. (cases 92-111)

la parte esencial y respectiva del testamento,
vinieran a anular este, y ya porque el precepto
contenido en dicho parrafo ha de entenderse en
perfecta armonia y congruencia con el art. 26 de
la ley del Notariado que declara nulas las
adiciones
apostillas
entrerrenglonados,
raspaduras y tachados en las escrituras matrices,
siempre que no se salven en la forma prevenida,
paro no el documento que las contenga, y con
mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan
importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria,
sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de
excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del guarismo
ultimo del ao en que fue extendido 3(Emphasis
ours).

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

WHEREFORE, this Petition is hereby dismissed and the Decision of

respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.

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

40

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge,
Branch 18, RTC, Bulacan, respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court to set aside the Order dated November 19, 1986 of the
Regional Trial Court, Branch 18, Bulacan presided by respondent
Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who
became American citizens, established a successful medical practice
in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive,
Pompey, Syracuse, New York, with their children, Jocelyn, 18;
Jacqueline, 16; and Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament,
bequeathing to his wife "all the remainder" of his real and personal
property at the time of his death "wheresoever situated" (Rollo, p.
35). In the event he would survive his wife, he bequeathed all his
property to his children and grandchildren with Dr. Rafael G.
Cunanan, Jr. as trustee. He appointed his wife as executrix of his last
will and testament and Dr. Rafael G. Cunanan, Jr. as substitute
executor. Article VIII of his will states:
If my wife, EVELYN PEREZ-CUNANAN, and I
shall die under such circumstances that there is
not sufficient evidence to determine the order of
our deaths, then it shall be presumed that I
predeceased her, and my estate shall be
administered and distributed, in all respects, in
accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her
own last will and testament containing the same provisions as that of
the will of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall
die under such circumstances that there is not
sufficient evidence to determine the order of our
deaths, then it shall be presumed that he
predeceased me, and my estate shall be
administered and distributed in all respects, in
accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when
they were trapped by fire that gutted their home. Thereafter, Dr.
Rafael G. Cunanan, Jr. as trustee and substitute executor of the two
wills, filed separate proceedings for the probate thereof with the
Surrogate Court of the County of Onondaga, New York. On April 7,
these two wills were admitted to probate and letters testamentary
were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr.
Evelyn P. Cunanan, and petitioner herein, filed with the Regional P.
Cunanan, and petitioner herein, filed with the Regional Trial Court,
Malolos, Bulacan a petition for the reprobate of the two bills ancillary
to the probate proceedings in New York. She also asked that she be
appointed the special administratrix of the estate of the deceased
couple consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan,
presided by Judge Gualberto J. de la Llana, issued an order, directing
the issuance of letters of special administration in favor of petitioner

upon her filing of a P10,000.00 bond. The following day, petitioner

posted the bond and took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying
that the Philippine Life Insurance Company be directed to deliver the
proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and
their daughter Jocelyn as beneficiaries. The trial court granted the
motion.
Counsel for the Philippine American Life Insurance Company then
filed a manifestation, stating that said company then filed a
manifestation, stating that said company had delivered to petitioner
the amount of P49,765.85, representing the proceeds of the life
insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael
Cunanan, Sr. be ordered to deliver to her a Philippine Trust Company
passbook with P25,594.00 in savings deposit, and the Family Savings
Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as
counsel for the heirs of Dr. Jose F. Cunanan, namely, Dr. Rafael
Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio,
Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs).
He also manifested that before receiving petitioner's motion of May
19, 1983, his clients were unaware of the filing of the testate estate
case and therefore, "in the interest of simple fair play," they should be
notified of the proceedings (Records, p. 110). He prayed for
deferment of the hearing on the motions of May 19, 1983.
Petitioner then filed a counter manifestation dated June 13, 1983,
asserting: (1) that the "Cunanan collaterals are neither heirs nor
creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no
legal or proprietary interests to protect" and "no right to intervene";
(2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn PerezCunanan, being American citizens, were executed in accordance with
the solemnities and formalities of New York laws, and produced
"effects in this jurisdiction in accordance with Art. 16 in relation to
Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4)
that "the Cunanan collaterals are neither distributees, legatees or
beneficiaries, much less, heirs as heirship is only by institution"
under a will or by operation of the law of New York (Records, pp.
112-113).
On June 23, the probate court granted petitioner's motion of May 19,
1983. However, on July 21, the Cunanan heirs filed a motion to
nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated:
(1) that being the "brothers and sisters and the legal and surviving
heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded"
in the petition for the probate of the separate wills of the Cunanan
spouses thereby misleading the Bulacan court to believe that
petitioner was the sole heir of the spouses; that such
"misrepresentation" deprived them of their right to "due process in
violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that
Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan
spouses, was likewise not notified of the hearings in the Bulacan
court; (3) that the "misrepresentation and concealment committed by"
petitioner rendered her unfit to be a special administratrix; (4) that Dr.
Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney,
authorized
his
father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr.
Rafael Cunanan, Sr. is qualified to be a regular administrator "as
practically all of the subject estate in the Philippines belongs to their
brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they
prayed: (1) that the proceedings in the case be declared null and void;
(2) that the appointment of petitioner as special administratrix be set
aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator of the estate of the deceased spouses.

41

SUCCESSION. SET 7. (cases 92-111)

Thereafter, the Cunanan heirs filed a motion requiring petitioner to
submit an inventory or accounting of all monies received by her in
trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and
only heir" of her daughter, Dr. Evelyn Perez-Cunanan to the
exclusion of the "Cunanan collaterals"; hence they were complete
strangers to the proceedings and were not entitled to notice; (2) that
she could not have "concealed" the name and address of Dr. Rafael
G. Cunanan, Jr. because his name was prominently mentioned not
only in the two wills but also in the decrees of the American
surrogate court; (3) that the rule applicable to the case is Rule 77, not
Rule 76, because it involved the allowance of wills proved outside of
the Philippines and that nowhere in Section 2 of Rule 77 is there a
mention of notice being given to the executor who, by the same
provision, should himself file the necessary ancillary proceedings in
this country; (4) that even if the Bulacan estate came from the
"capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods
to his wife and nothing to his brothers and sisters; and (5) that Dr.
Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the
Cunanan heirs, misappropriated $15,000.00 for himself and
irregularly assigned assets of the estates to his American lawyer
(Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982,
petitioner and the Cunanan heirs had entered into an agreement in the
United States "to settle and divide equally the estates," and that under
Section 2 of Rule 77 the "court shall fix a time and place for the
hearing and cause notice thereof to be given as in case of an original
will presented for allowance" (Records, pp. 184-185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt
of court for failure to comply with the Order of June 23, 1983 and for
appropriating money of the estate for his own benefit. She also
alleged that she had impugned the agreement of November 24, 1982
before the Surrogate Court of Onondaga, New York which rendered a
decision on April 13, 1983, finding that "all assets are payable to Dr.
Evelyn P. Cunanans executor to be then distributed pursuant to
EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped
from claiming that they were heirs by the agreement to divide equally
the estates. They asserted that by virtue of Section 2 of Rule 77 of the
Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on
the requirement of notice to all heirs, executors, devisees and legatees
must be complied with. They reiterated their prayer: (1) that the
proceedings in the case be nullified; (2) that petitioner be disqualified
as special administratrix; (3) that she be ordered to submit an
inventory of all goods, chattels and monies which she had received
and to surrender the same to the court; and (4) that Dr. Rafael
Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13,
1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made
"unauthorized disbursements from the estates as early as July 7,
1982" (Records, p. 231). Thereafter, petitioner moved for the
suspension of the proceedings as she had "to attend to the settlement
proceedings" of the estate of the Cunanan spouses in New York
(Records, p. 242). The Cunanans heirs opposed this motion and filed
a manifestation, stating that petitioner had received $215,000.00
"from the Surrogates Court as part of legacy" based on the aforesaid
agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing
the reprobate of the two wills, recalling the appointment of petitioner
as special administratrix, requiring the submission of petitioner of an
inventory of the property received by her as special administratrix
and declaring all pending incidents moot and academic. Judge de la
Llana reasoned out that petitioner failed to prove the law of New
York on procedure and allowance of wills and the court had no way
of telling whether the wills were executed in accordance with the law
of New York. In the absence of such evidence, the presumption is that
the law of succession of the foreign country is the same as the law of
the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law

requires three witnesses and that the wills were not signed on each
and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of
the Order dated February 21, 1984, where she had sufficiently proven
the applicable laws of New York governing the execution of last wills
and testaments.
On the same day, Judge de la Llana issued another order, denying the
motion of petitioner for the suspension of the proceedings but gave
her 15 days upon arrival in the country within which to act on the
other order issued that same day. Contending that the second portion
of the second order left its finality to the discretion of counsel for
petitioner, the Cunanans filed a motion for the reconsideration of the
objectionable portion of the said order so that it would conform with
the pertinent provisions of the Judiciary Reorganization Act of 1980
and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the
Regional Trial Court, Malolos, to which the reprobate case was
reassigned, issued an order stating that "(W)hen the last will and
testament . . . was denied probate," the case was terminated and
therefore all orders theretofore issued should be given finality. The
same Order amended the February 21, 1984 Order by requiring
petitioner to turn over to the estate the inventoried property. It
considered the proceedings for all intents and purposes, closed
(Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on
account of the final settlement and termination of the probate cases in
New York. Three days later, petitioner filed a motion praying for the
reconsideration of the Order of April 30, 1985 on the strength of the
February 21, 1984 Order granting her a period of 15 days upon
arrival in the country within which to act on the denial of probate of
the wills of the Cunanan spouses. On August 19, respondent Judge
granted the motion and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her
daughter, Natividad, filed a motion praying that since petitioner was
ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to
act as special administratrix, she (the counsel) should be named
substitute special administratrix. She also filed a motion for the
reconsideration of the Order of February 21, 1984, denying probate to
the wills of the Cunanan spouses, alleging that respondent Judge
"failed to appreciate the significant probative value of the exhibits . . .
which all refer to the offer and admission to probate of the last wills
of the Cunanan spouses including all procedures undertaken and
decrees issued in connection with the said probate" (Records, pp.
313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of
the Order of August 19, 1985, alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was
reassigned denied the motion for reconsideration holding that the
documents submitted by petitioner proved "that the wills of the
testator domiciled abroad were properly executed, genuine and
sufficient to possess real and personal property; that letters
testamentary were issued; and that proceedings were held on a
foreign tribunal and proofs taken by a competent judge who inquired
into all the facts and circumstances and being satisfied with his
findings issued a decree admitting to probate the wills in question."
However, respondent Judge said that the documents did not establish
the law of New York on the procedure and allowance of wills
(Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present
further evidence on the foreign law. After the hearing of the motion
on April 25, 1986, respondent Judge issued an order wherein he
conceded that insufficiency of evidence to prove the foreign law was
not a fatal defect and was curable by adducing additional evidence.
He granted petitioner 45 days to submit the evidence to that effect.

42

SUCCESSION. SET 7. (cases 92-111)

However, without waiting for petitioner to adduce the additional
evidence, respondent Judge ruled in his order dated June 20, 1986
that he found "no compelling reason to disturb its ruling of March 31,
1986" but allowed petitioner to "file anew the appropriate probate
proceedings for each of the testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second
motion for reconsideration stating that she was "ready to submit
further evidence on the law obtaining in the State of New York" and
praying that she be granted "the opportunity to present evidence on
what the law of the State of New York has on the probate and
allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow
the probate of two wills in a single proceeding "would be a departure
from the typical and established mode of probate where one petition
takes care of one will." He pointed out that even in New York "where
the wills in question were first submitted for probate, they were dealt
with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration
of the Order of July 18, 1986, citing Section 3, Rule 2 of the Rules of
Court, which provides that no party may institute more than one suit
for a single cause of action. She pointed out that separate proceedings
for the wills of the spouses which contain basically the same
provisions as they even named each other as a beneficiary in their
respective wills, would go against "the grain of inexpensive, just and
speedy determination of the proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion
for reconsideration, citing Benigno v. De La Pea, 57 Phil. 305
(1932)
(Records,
p. 411), but respondent Judge found that this pleading had been filed
out of time and that the adverse party had not been furnished with a
copy thereof. In her compliance, petitioner stated that she had
furnished a copy of the motion to the counsel of the Cunanan heirs
and reiterated her motion for a "final ruling on her supplemental
motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the
motion for reconsideration filed by petitioner on the grounds that "the
probate of separate wills of two or more different persons even if they
are husband and wife cannot be undertaken in a single petition"
(Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the
evidence offered at the hearing of April 11, 1983 sufficiently proved
the laws of the State of New York on the allowance of wills, and that
the separate wills of the Cunanan spouses need not be probated in
separate proceedings.
II

their records and files the said wills which were

recorded on April 7, 1982 (Exhs. "F-2" and "G2");
(d) the respective wills of Evelyn and Jose (Exhs.
"F-3", "F-6" and Exh. "G-3" "G-6");
(e) certificates of Judge Reagan and the Chief
Clerk certifying to the genuineness and
authenticity of the exemplified copies of the two
wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the
Consulate General of the Philippines in New
York (Exh. "H" and "F").
(g) certifications from the Secretary of State that
Judge Reagan is duly authorized to grant
exemplified copies of the decree of probate,
letters testamentary and all proceedings had and
proofs
duly
taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief
Clerk that letters testamentary were issued to
Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the
term of Judge Reagan that a decree admitting the
wills to probate had been issued and appointing
Rafael G. Cunanan as alternate executor (Exhs.
"H-3"
and
"I-10");
(j) the decrees on probate of the two wills
specifying that proceedings were held and proofs
duly taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating
that they were properly executed, genuine and
valid and that the said instruments were admitted
to probate and established as wills valid to pass
real and personal property (Exhs. "H-5" and "I5"); and
(l) certificates of Judge Reagan and the Chief
Clerk on the genuineness and authenticity of each
others signatures in the exemplified copies of the
decrees of probate, letters testamentary and
proceedings held in their court (Exhs. "H-6" and
"I-6") (Rollo, pp. 13-16).

Petitioner contends that the following pieces of evidence she had

submitted before respondent Judge are sufficient to warrant the
allowance of the wills:

Petitioner adds that the wills had been admitted to probate in the
Surrogate Courts Decision of April 13, 1983 and that the
proceedings were terminated on November 29, 1984.

(a) two certificates of authentication of the

respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F"
and "G");

The respective wills of the Cunanan spouses, who were American

citizens, will only be effective in this country upon compliance with
the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad
produces effect in the Philippines if made with
the formalities prescribed by the law of the place
in which he resides, or according to the
formalities observed in his country, or in
conformity with those which this Code
prescribes.

(b) two certifications from the Secretary of State

of New York and Custodian of the Great Seal on
the facts that Judge Bernard L. Reagan is the
Surrogate of the Country of Onondaga which is a
court of record, that his signature and seal of
office are genuine, and that the Surrogate is duly
authorized to grant copy of the respective wills of
Evelyn
and
Jose
(Exhs. "F-1" and "G-1");

Thus, proof that both wills conform with the formalities prescribed
by New York laws or by Philippine laws is imperative.

(c) two certificates of Judge Reagan and Chief

Clerk Donald E. Moore stating that they have in

The evidence necessary for the reprobate or allowance of wills which

have been probated outside of the Philippines are as follows: (1) the

43

SUCCESSION. SET 7. (cases 92-111)

due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the
Philippines; (3) the will has been admitted to probate in such country;
(4) the fact that the foreign tribunal is a probate court, and (5) the
laws of a foreign country on procedure and allowance of wills (III
Moran Commentaries on the Rules of Court, 1970 ed., pp. 419-429;
Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil. 610
[1930]). Except for the first and last requirements, the petitioner
submitted all the needed evidence.
The necessity of presenting evidence on the foreign laws upon which
the probate in the foreign country is based is impelled by the fact that
our courts cannot take judicial notice of them (Philippine
Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Court, the "court shall also cause copies of the notice of the time and
place fixed for proving the will to be addressed to the designated or
other known heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent
Judge shall allow petitioner reasonable time within which to submit
evidence needed for the joint probate of the wills of the Cunanan
spouses and see to it that the brothers and sisters of Dr. Jose F.
Cunanan are given all notices and copies of all pleadings pertinent to
the probate proceedings.
SO ORDERED.

Petitioner must have perceived this omission as in fact she moved for
more time to submit the pertinent procedural and substantive New
York laws but which request respondent Judge just glossed over.
While the probate of a will is a special proceeding wherein courts
should relax the rules on evidence, the goal is to receive the best
evidence of which the matter is susceptible before a purported will is
probated or denied probate (Vda. de Ramos v. Court of Appeals, 81
SCRA 393 [1978]).
There is merit in petitioners insistence that the separate wills of the
Cunanan spouses should be probated jointly. Respondent Judges
view that the Rules on allowance of wills is couched in singular terms
and therefore should be interpreted to mean that there should be
separate probate proceedings for the wills of the Cunanan spouses is
too literal and simplistic an approach. Such view overlooks the
provisions of Section 2, Rule 1 of the Revised Rules of Court, which
advise that the rules shall be "liberally construed in order to promote
their object and to assist the parties in obtaining just, speedy, and
inexpensive determination of every action and proceeding."
A literal application of the Rules should be avoided if they would
only result in the delay in the administration of justice (Acain v.
Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either
for the testators reciprocal benefit or for the benefit of a third person
(Civil Code of the Philippines, Article 818). In the case at bench, the
Cunanan spouses executed separate wills. Since the two wills contain
essentially the same provisions and pertain to property which in all
probability are conjugal in nature, practical considerations dictate
their joint probate. As this Court has held a number of times, it will
always strive to settle the entire controversy in a single proceeding
leaving no root or branch to bear the seeds of future litigation
(Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a
very glaring fact petitioner has always considered herself the sole
heir
of
Dr. Evelyn Perez Cunanan and because she does not consider herself
an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his
heirs of the filing of the proceedings. Thus, even in the instant
petition, she only impleaded respondent Judge, forgetting that a judge
whose order is being assailed is merely a nominal or formal party
(Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will
shall "cause notice thereof to be given as in case of an original will
presented for allowance" (Revised Rules of Court, Rule 27, Section
2) means that with regard to notices, the will probated abroad should
be treated as if it were an "original will" or a will that is presented for
probate for the first time. Accordingly, compliance with Sections 3
and 4 of Rule 76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees of the testator
resident in the Philippines" and to the executor, if he is not the
petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to
petitioner's claim, are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised Rules of

44

SUCCESSION. SET 7. (cases 92-111)

G.R. No. 169144

January 26, 2011

IN RE: IN THE MATTER OF THE PETITION TO APPROVE

THE WILL OF RUPERTA PALAGANAS WITH PRAYER FOR
THE APPOINTMENT OF SPECIAL ADMINISTRATOR,
MANUEL MIGUEL PALAGANAS and BENJAMIN
GREGORIO PALAGANAS, Petitioners,
vs.
ERNESTO PALAGANAS, Respondent.
DECISION
ABAD, J.:
This case is about the probate before Philippine court of a will
executed abroad by a foreigner although it has not been probated in
its place of execution.
The Facts and the Case
On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino
who became a naturalized United States (U.S.) citizen, died single
and childless. In the last will and testament she executed in
California, she designated her brother, Sergio C. Palaganas (Sergio),
as the executor of her will for she had left properties in the
Philippines and in the U.S.
On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another
brother of Ruperta, filed with the Regional Trial Court (RTC) of
Malolos, Bulacan, a petition for the probate of Rupertas will and for
his appointment as special administrator of her estate. 1 On October
15, 2003, however, petitioners Manuel Miguel Palaganas (Manuel)
and Benjamin Gregorio Palaganas (Benjamin), nephews of Ruperta,
opposed the petition on the ground that Rupertas will should not be
probated in the Philippines but in the U.S. where she executed it.
Manuel and Benjamin added that, assuming Rupertas will could be
probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testators full understanding of
the consequences of such act. Ernesto, they claimed, is also not
qualified to act as administrator of the estate.
Meantime, since Rupertas foreign-based siblings, Gloria Villaluz and
Sergio, were on separate occasions in the Philippines for a short visit,
respondent Ernesto filed a motion with the RTC for leave to take their
deposition, which it granted. On April, 13, 2004 the RTC directed the
parties to submit their memorandum on the issue of whether or not
Rupertas U.S. will may be probated in and allowed by a court in the
Philippines.
On June 17, 2004 the RTC issued an order: 2 (a) admitting to probate
Rupertas last will; (b) appointing respondent Ernesto as special
administrator at the request of Sergio, the U.S.-based executor
designated in the will; and (c) issuing the Letters of Special
Administration to Ernesto.
Aggrieved by the RTCs order, petitioner nephews Manuel and
Benjamin appealed to the Court of Appeals (CA), 3arguing that an
unprobated will executed by an American citizen in the U.S. cannot
be probated for the first time in the Philippines.
On July 29, 2005 the CA rendered a decision, 4 affirming the assailed
order of the RTC,5 holding that the RTC properly allowed the probate
of the will, subject to respondent Ernestos submission of the
authenticated copies of the documents specified in the order and his
posting of required bond. The CA pointed out that Section 2, Rule 76
of the Rules of Court does not require prior probate and allowance of

the will in the country of its execution, before it can be probated in

the Philippines. The present case, said the CA, is different from
reprobate, which refers to a will already probated and allowed
abroad. Reprobate is governed by different rules or procedures.
Unsatisfied with the decision, Manuel and Benjamin came to this
Court.
The Issue Presented
The key issue presented in this case is whether or not a will executed
by a foreigner abroad may be probated in the Philippines although it
has not been previously probated and allowed in the country where it
was executed.
The Courts Ruling
Petitioners Manuel and Benjamin maintain that wills executed by
foreigners abroad must first be probated and allowed in the country
of its execution before it can be probated here. This, they claim,
ensures prior compliance with the legal formalities of the country of
its execution. They insist that local courts can only allow probate of
such wills if the proponent proves that: (a) the testator has been
admitted for probate in such foreign country, (b) the will has been
admitted to probate there under its laws, (c) the probate court has
jurisdiction over the proceedings, (d) the law on probate procedure in
that foreign country and proof of compliance with the same, and (e)
the legal requirements for the valid execution of a will.
But our laws do not prohibit the probate of wills executed by
foreigners abroad although the same have not as yet been probated
and allowed in the countries of their execution. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code
states that the will of an alien who is abroad produces effect in the
Philippines if made in accordance with the formalities prescribed by
the law of the place where he resides, or according to the formalities
observed in his country.6
In this connection, Section 1, Rule 73 of the 1997 Rules of Civil
Procedure provides that if the decedent is an inhabitant of a foreign
country, the RTC of the province where he has an estate may take
cognizance of the settlement of such estate. Sections 1 and 2 of Rule
76 further state that the executor, devisee, or legatee named in the
will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to
have the will allowed, whether the same be in his possession or not,
or is lost or destroyed.
Our rules require merely that the petition for the allowance of a will
must show, so far as known to the petitioner: (a) the jurisdictional
facts; (b) the names, ages, and residences of the heirs, legatees, and
devisees of the testator or decedent; (c) the probable value and
character of the property of the estate; (d) the name of the person for
whom letters are prayed; and (e) if the will has not been delivered to
the court, the name of the person having custody of it. Jurisdictional
facts refer to the fact of death of the decedent, his residence at the
time of his death in the province where the probate court is sitting, or
if he is an inhabitant of a foreign country, the estate he left in such
province.7The rules do not require proof that the foreign will has
already been allowed and probated in the country of its execution.
In insisting that Rupertas will should have been first probated and
allowed by the court of California, petitioners Manuel and Benjamin
obviously have in mind the procedure for the reprobate of will before
admitting it here. But, reprobate or re-authentication of a will already
probated and allowed in a foreign country is different from that
probate where the will is presented for the first time before a

45

SUCCESSION. SET 7. (cases 92-111)

competent court. Reprobate is specifically governed by Rule 77 of
the Rules of Court. Contrary to petitioners stance, since this latter
rule applies only to reprobate of a will, it cannot be made to apply to
the present case. In reprobate, the local court acknowledges as
binding the findings of the foreign probate court provided its
jurisdiction over the matter can be established.
Besides, petitioners stand is fraught with impractically.1wphi1 If
the instituted heirs do not have the means to go abroad for the probate
of the will, it is as good as depriving them outright of their
inheritance, since our law requires that no will shall pass either real
or personal property unless the will has been proved and allowed by
the proper court.8
Notably, the assailed RTC order of June 17, 2004 is nothing more
than an initial ruling that the court can take cognizance of the petition
for probate of Rupertas will and that, in the meantime, it was
designating Ernesto as special administrator of the estate. The parties
have yet to present evidence of the due execution of the will, i.e. the
testators state of mind at the time of the execution and compliance
with the formalities required of wills by the laws of California. This
explains the trial courts directive for Ernesto to submit the duly
authenticated copy of Rupertas will and the certified copies of the
Laws of Succession and Probate of Will of California.
WHEREFORE, the Court DENIES the petition and AFFIRMS the
Court of Appeals decision in CA-G.R. CV 83564 dated July 29,
2005.
SO ORDERED.

46

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-12767

November 16, 1918

In the matter of the estate of EMIL H. JOHNSON. EBBA

INGEBORG JOHNSON, applicant-appellant,
STREET, J.:
On February 4, 1916, Emil H. Johnson, a native of Sweden and a
naturalized citizen of the United States, died in the city of Manila,
leaving a will, dated September 9, 1915, by which he disposed of an
estate, the value of which, as estimated by him, was P231,800. This
document is an holographic instrument, being written in the testator's
own handwriting, and is signed by himself and two witnesses only,
instead of three witnesses required by section 618 of the Code of
Civil Procedure. This will, therefore, was not executed in conformity
with the provisions of law generally applicable to wills executed by
inhabitants of these Islands, and hence could not have been proved
under section 618.
On February 9, 1916, however, a petition was presented in the Court
of First Instance of the city of Manila for the probate of this will, on
the ground that Johnson was at the time of his death a citizen of the
State of Illinois, United States of America; that the will was duly
executed in accordance with the laws of that State; and hence could
properly be probated here pursuant to section 636 of the Code of
Civil Procedure. This section reads as follows:
Will made here by alien. A will made within the
Philippine Islands by a citizen or subject of another state or
country, which is executed in accordance with the law of
the state or country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own
state or country, may be proved, allowed, and recorded in
the Philippine Islands, and shall have the same effect as if
executed according to the laws of these Islands.
The hearing on said application was set for March 6, 1916, and three
weeks publication of notice was ordered in the "Manila Daily
Bulletin." Due publication was made pursuant to this order of the
court. On March 6, 1916, witnesses were examined relative to the
execution of the will; and upon March 16th thereafter the document
was declared to be legal and was admitted to probate. At the same
time an order was made nominating Victor Johnson and John T.
Pickett as administrators of the estate, with the sill annexed. Shortly
thereafter Pickett signified his desire not to serve, and Victor Johnson
was appointed sole administrator.
By the will in question the testator gives to his brother Victor one
hundred shares of the corporate stock in the Johnson-Pickett Rope
Company; to his father and mother in Sweden, the sum of P20,000; to
his daughter Ebba Ingeborg, the sum of P5,000; to his wife, Alejandra
Ibaez, the sum of P75 per month, if she remains single; to Simeona
Ibaez, spinster, P65 per month, if she remains single. The rest of the
property is left to the testator's five children Mercedes,
Encarnacion, Victor, Eleonor and Alberto.
The biographical facts relative to the deceased necessary to an
understanding of the case are these: Emil H. Johnson was born in
Sweden, May 25, 1877, from which country he emigrated to the
United States and lived in Chicago, Illinois, from 1893 to 1898. On
May 9, 1898, at Chicago, he was married to Rosalie Ackeson, and
immediately thereafter embarked for the Philippine Islands as a
soldier in the Army of the United States. As a result of relations
between Johnson and Rosalie Ackeson a daughter, named Ebba
Ingeborg, was born a few months after their marriage. This child was
christened in Chicago by a pastor of the Swedish Lutheran Church
upon October 16, 1898.
After Johnson was discharged as a soldier from the service of the
United States he continued to live in the Philippine Islands, and on
November 20, 1902, the wife, Rosalie Johnson, was granted a decree
of divorce from him in the Circuit Court of Cook County, Illinois, on
the ground of desertion. A little later Johnson appeared in the United

States on a visit and on January 10, 1903, procured a certificate of

naturalization at Chicago. From Chicago he appears to have gone to
Sweden, where a photograph, exhibited in evidence in this case, was
taken in which he appeared in a group with his father, mother, and the
little daughter, Ebba Ingeborg, who was then living with her
grandparents in Sweden. When this visit was concluded, the deceased
returned to Manila, where he prospered in business and continued to
live until his death.
In this city he appears to have entered into marital relations with
Alejandra Ibaez, by whom he had three children, to wit, Mercedes,
baptized May 31, 1903; Encarnacion, baptized April 29, 1906; and
Victor, baptized December 9, 1907. The other two children
mentioned in the will were borne to the deceased by Simeona Ibaez.
On June 12, 1916, or about three months after the will had been
probated, the attorneys for Ebba Ingeborg Johnson entered an
appearance in her behalf and noted an exception to the other
admitting the will to probate. On October 31, 1916, the same
attorneys moved the court to vacate the order of March 16 and also
various other orders in the case. On February 20, 1917, this motion
was denied, and from this action of the trial court the present appeal
has been perfected.
As will be discerned, the purpose of the proceeding on behalf of the
petitioner is to annul the decree of probate and put the estate into
intestate administration, thus preparing the way for the establishment
of the claim of the petitioner as the sole legitimate heir of her father.
The grounds upon which the petitioner seeks to avoid the probate are
four in number and may be stated, in the same sequence in which
they are set forth in the petition, as follows:
(1) Emil H. Johnson was a resident of the city of Manila and not a
resident of the State of Illinois at the time the will in question was
executed;
(2) The will is invalid and inadequate to pass real and personal
property in the State of Illinois;
(3) The order admitting the will to probate was made without notice
to the petitioner; and
(4) The order in question was beyond the jurisdiction of the court.
It cannot of course be maintained that a court of first instance lacks
essential jurisdiction over the probate of wills. The fourth proposition
above stated must, accordingly, be interpreted in relation with the
third and must be considered as a corollary deduced from the latter.
Moreover, both the third and fourth grounds stated take precedence,
by reason of their more fundamental implications, over the first two;
and a logical exposition of the contentions of the petitioner is
expressed in the two following propositions:
(I) The order admitting the will to probate was beyond the
jurisdiction of the court and void because made without
notice to the petitioner;
(II) The judgment from which the petitioner seeks relief
should be set aside because the testator was not a resident
of the State of Illinois and the will was not in conformity
with the laws of that State.
In the discussion which is to follow we shall consider the problems
arising in this cae in the order last above indicated. Upon the
question, then, of the jurisdiction of the court, it is apparent from an
inspection of the record of the proceedings in the court below that all
the steps prescribed by law as prerequisites to the probate of a will
were complied with in every respect and that the probate was effected
in external conformity with all legal requirements. This much is
unquestioned. It is, however, pointed out in the argument submitted
in behalf of the petitioner, that, at the time the court made the order of

47

SUCCESSION. SET 7. (cases 92-111)

publication, it was apprised of the fact that the petitioner lived in the
United States and that as daughter and heir she was necessarily
interested in the probate of the will. It is, therefore, insisted that the
court should have appointed a date for the probate of the will
sufficiently far in the future to permit the petitioner to be present
either in person or by representation; and it is said that the failure of
the court thus to postpone the probate of the will constitutes an
infringement of that provision of the Philippine Bill which declared
that property shall not be taken without due process of law.
On this point we are of the opinion that the proceedings for the
probate of the will were regular and that the publication was
sufficient to give the court jurisdiction to entertain the proceeding and
to allow the will to be probated.
As was said in the case of In re Davis (136 Cal., 590, 596), "the
proceeding as to the probate of a will is essentially one in rem, and in
the very nature of things the state is allowed a wide latitude in
determining the character of the constructive notice to be given to the
world in a proceeding where it has absolute possession of the res. It
would be an exceptional case where a court would declare a statute
void, as depriving a party of his property without due process of law,
the proceeding being strictly in rem, and the res within the state, upon
the ground that the constructive notice prescribed by the statute was
unreasonably short."
In that case the petitioner had been domiciled in the Hawaiian Islands
at the time of the testator's death; and it was impossible, in view of
the distance and means of communication then existing, for the
petitioner to appear and oppose the probate on the day set for the
hearing in California. It was nevertheless held that publication in the
manner prescribed by statute constituted due process of law.
(See Estate of Davis, 151 Cal., 318; Tracy vs. Muir, 151 Cal., 363.)
In the Davis case (136 Cal., 590) the court commented upon the fact
that, under the laws of California, the petitioner had a full year within
which she might have instituted a proceeding to contest the will; and
this was stated as one of the reasons for holding that publication in
the manner provided by statute was sufficient. The same
circumstance was commented upon in O'Callaghan vs. O'Brien (199
U. S., 89), decided in the Supreme Court of the United States. This
case arose under the laws of the State of Washington, and it was
alleged that a will had been there probated without the notice of
application for probate having been given as required by law. It was
insisted that this was an infringement of the Fourteenth Amendment
of the Constitution of the United States. This contention was,
however, rejected and it was held that the statutory right to contest
the will within a year was a complete refutation of the argument
founded on the idea of a violation of the due process provision.
The laws of these Islands, in contrast with the laws in force in
perhaps all of the States of the American Union, contain no special
provision, other than that allowing an appeal in the probate
proceedings, under which relief of any sort can be obtained from an
order of a court of first instance improperly allowing or disallowing a
will. We do, however, have a provision of a general nature
authorizing a court under certain circumstances to set aside any
judgment, order, or other proceeding whatever. This provision is
found in section 113 of the Code of Civil Procedure, which reads as
follows:
Upon such terms as may be just the court may relieve a
party or his legal representative from a judgment, order or
other proceeding taken against him through his mistake,
inadvertence, surprise or excusable neglect;Provided, That
application therefor be made within a reasonable time, but
in no case exceeding six months after such judgment, order,
or proceeding was taken.
The use of the word "judgment, order or other proceeding" in this
section indicates an intention on the part of the Legislature to give a
wide latitude to the remedy here provided, and in our opinion its
operation is not to be restricted to judgments or orders entered in
ordinary contentious litigation where a plaintiff impleads a defendant
and brings him into court by personal service of process. In other

words the utility of the provision is not limited to actions proper but
extends to all sorts of judicial proceedings.
In the second section of the Code of Civil Procedure it is declared
that the provisions of this Code shall be liberally construed to
promote its object and to assist the parties in obtaining speedy justice.
We think that the intention thus exhibited should be applied in the
interpretation of section 113; and we hold that the word "party," used
in this section, means any person having an interest in the subject
matter of the proceeding who is in a position to be concluded by the
judgment, order, to other proceeding taken.
The petitioner, therefore, in this case could have applied, under the
section cited, at any time within six months for March 16, 1916, and
upon showing that she had been precluded from appearing in the
probate proceedings by conditions over which she had no control and
that the order admitting the will to probate had been erroneously
entered upon insufficient proof or upon a supposed state of facts
contrary to the truth, the court would have been authorized to set the
probate aside and grant a rehearing. It is no doubt true that six months
was, under the circumstances, a very short period of time within
which to expect the petitioner to appear and be prepared to contest
the probate with the proof which she might have desired to collect
from remote countries. Nevertheless, although the time allowed for
the making of such application was inconveniently short, the remedy
existed; and the possibility of its use is proved in this case by the
circumstance that on June 12, 1916, she in fact here appeared in court
by her attorneys and excepted to the order admitting the will to
probate.
It results that, in conformity with the doctrine announced in the Davis
case, above cited, the proceedings in the court below were conducted
in such manner as to constitute due process of law. The law supplied
a remedy by which the petitioner might have gotten a hearing and
have obtained relief from the order by which she is supposed to have
been injured; and though the period within which the application
should have been made was short, the remedy was both possible and
practicable.
From what has been said it follows that the order of March 16, 1916,
admitting the will of Emil H. Johnson to probate cannot be declared
null and void merely because the petitioner was unavoidably
prevented from appearing at the original hearing upon the matter of
the probate of the will in question. Whether the result would have
been the same if our system of procedure had contained no such
provision as that expressed in section 113 is a matter which we need
not here consider.
Intimately connected with the question of the jurisdiction of the
court, is another matter which may be properly discussed at this
juncture. This relates to the interpretation to be placed upon section
636 of the Code of Civil Procedure. The position is taken by the
appellant that this section is applicable only to wills of liens; and in
this connection attention is directed to the fact that the epigraph of
this section speaks only of the will made here by an alien and to the
further fact that the word "state" in the body of the section is not
capitalized. From this it is argued that section 636 is not applicable to
the will of a citizen of the United States residing in these
Islands.lawphil.net
We consider these suggestions of little weight and are of the opinion
that, by the most reasonable interpretation of the language used in the
statute, the words "another state or country" include the United States
and the States of the American Union, and that the operation of the
statute is not limited to wills of aliens. It is a rule of hermeneutics that
punctuation and capitalization are aids of low degree in interpreting
the language of a statute and can never control against the intelligible
meaning of the written words. Furthermore, the epigraph, or heading,,
of a section, being nothing more than a convenient index to the
contents of the provision, cannot have the effect of limiting the
operative words contained in the body of the text. It results that if
Emil H. Johnson was at the time of his death a citizen of the United
States and of the State of Illinois, his will was provable under this
section in the courts of the Philippine Islands, provided the
instrument was so executed as to be admissible to probate under the
laws of the State of Illinois.

48

SUCCESSION. SET 7. (cases 92-111)

We are thus brought to consider the second principal proposition
stated at the outset of this discussion, which raises the question
whether the order f probate can be set aside in this proceeding on the
other ground stated in the petition, namely, that the testator was not a
resident of the State of Illinois and that the will was not made in
conformity with the laws of that State.
The order of the Court of First Instance admitting the will to probate
recites, among other things:
That upon the date when the will in question was executed
Emil H. Johnson was a citizen of the United States,
naturalized in the State of Illinois, County of Cook, and that
the will in question was executed in conformity with the
dispositions of the law f the State of Illinois.
We consider this equivalent to a finding that upon the date of the
execution of the will the testator was a citizen of the State of Illinois
and that the will was executed in conformity with the laws of that
State. Upon the last point the finding is express; and in our opinion
the statement that the testator was a citizen of the United States,
naturalized in the State of Illinois, should be taken to imply that he
was a citizen of the State of Illinois, as well as of the United States.
The naturalization laws of the United States require, as a condition
precedent to the granting of the certificate of naturalization, that the
applicant should have resided at least five years in the United States
and for one year within the State or territory where the court granting
the naturalization papers is held; and in the absence of clear proof to
the contrary it should be presumed that a person naturalized in a court
of a certain State thereby becomes a citizen of that State as well as of
the United States.
In this connection it should be remembered that the Fourteenth
Amendment to the Constitution of the United States declares, in its
opening words, that all persons naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside.
It is noteworthy that the petition by which it is sought to annul the
probate of this will does not assert that the testator was not a citizen
of Illinois at the date when the will was executed. The most that is
said on this point is he was "never a resident of the State of Illinois
after the year 1898, but became and was a resident of the city of
Manila," etc. But residence in the Philippine Islands is compatible
with citizenship in Illinois; and it must be considered that the
allegations of the petition on this point are, considered in their
bearing as an attempt to refute citizenship in Illinois, wholly
insufficient.
As the Court of First Instance found that the testator was a citizen of
the State of Illinois and that the will was executed in conformity with
the laws of that State, the will was necessarily and properly admitted
to probate. And how is it possible to evade the effect of these
findings?
In Section 625 of the Code of Civil Procedure it is declared that "the
allowance by the court of a will of real or personal property shall be
conclusive as to its due execution."
The due execution of a will involves conditions relating to a number
of matters, such as the age and mental capacity of the testator, the
signing of the document by the testator, or by someone in his behalf,
and the acknowledgment of the instrument by him in the presence of
the required number of witnesses who affix their signatures to the
will to attest the act. The proof of all these requisites is involved in
the probate; and as to each and all of them the probate is conclusive.
(Castaeda vs. Alemany, 3 Phil. Rep., 426; Pimentel vs. Palanca, 5
Phil. Rep., 436; Chiong Joc-Soyvs. Vao, 8 Phil. Rep., 119;
Sanchez vs. Pascual, 11 Phil. Rep., 395; Montaano vs. Suesa, 14
Phil. Rep., 676.)
Our reported cases do not contain the slightest intimation that a will
which has been probated according to law, and without fraud, can be

annulled, in any other proceeding whatever, on account of any

supposed irregularity or defect in the execution of the will or on
account of any error in the action of the court upon the proof adduced
before it. This court has never been called upon to decide whether, in
case the probate of a will should be procured by fraud, relief could be
granted in some other proceeding; and no such question is now
presented. But it is readily seen that if fraud were alleged, this would
introduce an entirely different factor in the cae. In
Austrua vs. Ventenilla (21 Phil. Rep., 180, 184), it was suggested but
not decided that relief might be granted in case the probate of a will
were procured by fraud.
The circumstance that the judgment of the trial court recites that the
will was executed in conformity with the law of Illinois and also, in
effect, that the testator was a citizen of that State places the judgment
upon an unassailable basis so far as any supposed error apparent upon
the fact of the judgment is concerned. It is, however, probable that
even if the judgment had not contained these recitals, there would
have been a presumption from the admission of the will to probate as
the will of a citizen of Illinois that the facts were as recited in the
order of probate.
As was said by this court in the case of Banco EspaolFilipino vs. Palanca (37 Phil. Rep., 921), "There is no principle of law
better settled than that after jurisdiction has once been acquired,
every act of a court of general jurisdiction shall be presumed to have
been rightly done. This rule is applied to every judgment or decree
rendered in the various stages of the proceedings from their initiation
to their completion (Voorhees vs. United States Bank, 10 Pet., 314;
35 U. S., 449); and if the record is silent with respect to any fact
which must have established before the court could have rightly
acted, it will be presumed that such fact was properly brought to its
knowledge."
The Court of First Instance is a court of original and general
jurisdiction; and there is no difference in its faculties in this respect
whether exercised in matters of probate or exerted in ordinary
contentious litigation. The trial court therefore necessarily had the
power to determine the facts upon which the propriety of admitting
the will to probate depended; and the recital of those facts in the
judgment was probably not essential to its validity. No express ruling
is, however, necessary on this point.
What has been said effectually disposes of the petition considered in
its aspect as an attack upon the order of probate for error apparent on
the face of the record. But the petitioner seeks to have the judgment
reviewed, it being asserted that the findings of the trial court
especially on the question of the citizenship of the testator are not
supported by the evidence. It needs but a moment's reflection,
however, to show that in such a proceeding as this it is not possible to
reverse the original order on the ground that the findings of the trial
court are unsupported by the proof adduced before that court. The
only proceeding in which a review of the evidence can be secured is
by appeal, and the case is not before us upon appeal from the original
order admitting the will to probate. The present proceedings by
petition to set aside the order of probate, and the appeal herein is
from the order denying this relief. It is obvious that on appeal from an
order refusing to vacate a judgment it is not possible to review the
evidence upon which the original judgment was based. To permit this
would operate unduly to protract the right of appeal.
However, for the purpose of arriving at a just conception of the case
from the point of view of the petitioner, we propose to examine the
evidence submitted upon the original hearing, in connection with the
allegations of the petition, in order to see, first, whether the evidence
submitted to the trial court was sufficient to justify its findings, and,
secondly, whether the petition contains any matter which would
justify the court in setting the judgment, aside. In this connection we
shall for a moment ignore the circumstance that the petition was filed
after the expiration of the six months allowed by section 113 of the
Code of Civil Procedure.
The principal controversy is over the citizenship of the testator. The
evidence adduced upon this point in the trial court consists of the
certificate of naturalization granted upon January 10, 1903, in the
Circuit Court of Cook County, Illinois, in connection with certain

49

SUCCESSION. SET 7. (cases 92-111)

biographical facts contained in the oral evidence. The certificate of
naturalization supplies incontrovertible proof that upon the date
stated the testator became a citizen of the United States, and
inferentially also a citizen of said State. In the testimony submitted to
the trial court it appears that, when Johnson first came to the United
States as a boy, he took up his abode in the State of Illinois and there
remained until he came as a soldier in the United States Army to the
Philippine Islands. Although he remained in these Islands for
sometime after receiving his discharge, no evidence was adduced
showing that at the time he returned to the United States, in the
autumn of 1902, he had then abandoned Illinois as the State of his
permanent domicile, and on the contrary the certificate of
naturalization itself recites that at that time he claimed to be a
resident of Illinois.
Now, if upon January 10, 1903, the testator became a citizen of the
United States and of the State of Illinois, how has he lost the
character of citizen with respect to either of these jurisdictions? There
is no law in force by virtue of which any person of foreign nativity
can become a naturalized citizen of the Philippine Islands; and it was,
therefore, impossible for the testator, even if he had so desired, to
expatriate himself from the United States and change his political
status from a citizen of the United States to a citizen of these Islands.
This being true, it is to be presumed that he retained his citizenship in
the State of Illinois along with his status as a citizen of the United
States. It would be novel doctrine to Americans living in the
Philippine Islands to be told that by living here they lose their
citizenship in the State of their naturalization or nativity.
We are not unmindful of the fact that when a citizen of one State
leaves it and takes up his abode in another State with no intention of
returning, he immediately acquires citizenship in the State of his new
domicile. This is in accordance with that provision of the Fourteenth
Amendment to the Constitution of the United States which says that
every citizen of the United States is a citizen of the State where in he
resides. The effect of this provision necessarily is that a person
transferring his domicile from one State to another loses his
citizenship in the State of his original above upon acquiring
citizenship in the State of his new abode. The acquisition of the new
State citizenship extinguishes the old. That situation, in our opinion,
has no analogy to that which arises when a citizen of an American
State comes to reside in the Philippine Islands. Here he cannot
acquire a new citizenship; nor by the mere change of domicile does
he lose that which he brought with him.
The proof adduced before the trial court must therefore be taken as
showing that, at the time the will was executed, the testator was, as
stated in the order of probate, a citizen of the State of Illinois. This, in
connection with the circumstance that the petition does not even so
much as deny such citizenship but only asserts that the testator was a
resident of the Philippine Islands, demonstrates the impossibility of
setting the probate aside for lack of the necessary citizenship on the
part of the testator. As already observed, the allegation of the petition
on this point is wholly insufficient to justify any relief whatever.
Upon the other point as to whether the will was executed in
conformity with the statutes of the State of Illinois we note that it
does not affirmatively appear from the transaction of the testimony
adduced in the trial court that any witness was examined with
reference to the law of Illinois on the subject of the execution of will.
The trial judge no doubt was satisfied that the will was properly
executed by examining section 1874 of the Revised Statutes of
Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated
Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he
could take judicial notice of the laws of Illinois under section 275 of
the Code of Civil Procedure. If so, he was in our opinion mistaken.
that section authorizes the courts here to take judicial notice, among
other things, of the acts of the legislative department of the United
States. These words clearly have reference to Acts of the Congress of
the United States; and we would hesitate to hold that our courts can,
under this provision, take judicial notice of the multifarious laws of
the various American States. Nor do we think that any such authority
can be derived from the broader language, used in the same action,
where it is said that our courts may take judicial notice of matters of
public knowledge "similar" to those therein enumerated. The proper
rule we think is to require proof of the statutes of the States of the

American Union whenever their provisions are determinative of the

issues in any action litigated in the Philippine courts.
Nevertheless, even supposing that the trial court may have erred in
taking judicial notice of the law of Illinois on the point in question,
such error is not now available to the petitioner, first, because the
petition does not state any fact from which it would appear that the
law of Illinois is different from what the court found, and, secondly,
because the assignment of error and argument for the appellant in this
court raises no question based on such supposed error. Though the
trial court may have acted upon pure conjecture as to the law
prevailing in the State of Illinois, its judgment could not be set aside,
even upon application made within six months under section 113 of
the Code of Civil procedure, unless it should be made to appear
affirmatively that the conjecture was wrong. The petitioner, it is true,
states in general terms that the will in question is invalid and
inadequate to pass real and personal property in the State of Illinois,
but this is merely a conclusion of law. The affidavits by which the
petition is accompanied contain no reference to the subject, and we
are cited to no authority in the appellant's brief which might tent to
raise a doubt as to the correctness of the conclusion of the trial court.
It is very clear, therefore, that this point cannot be urged as of serious
moment.
But it is insisted in the brief for the appellant that the will in question
was not properly admissible to probate because it contains provisions
which cannot be given effect consistently with the laws of the
Philippine Islands; and it is suggested that as the petitioner is a
legitimate heir of the testator she cannot be deprived of the legitime
to which she is entitled under the law governing testamentary
successions in these Islands. Upon this point it is sufficient to say that
the probate of the will does not affect the intrinsic validity of its
provisions, the decree of probate being conclusive only as regards the
due execution of the will. (Code of Civil Procedure, secs. 625, 614;
Sahagun vs. De Gorostiza, 7 Phil. Rep., 347, 349; Chiong JocSoy vs. Vao, 8 Phil. Rep., 119, 121; Limjuco vs. Ganara, 11 Phil.
Rep., 393, 395.)
If, therefore, upon the distribution of this estate, it should appear that
any legacy given by the will or other disposition made therein is
contrary to the law applicable in such case, the will must necessarily
yield upon that point and the law must prevail. Nevertheless, it
should not be forgotten that the intrinsic validity of the provisions of
this will must be determined by the law of Illinois and not, as the
appellant apparently assumes, by the general provisions here
applicable in such matters; for in the second paragraph of article 10
of the Civil Code it is declared that "legal and testamentary
successions, with regard to the order of succession, as well as to the
amount of the successional rights and to the intrinsic validity of their
provisions, shall be regulated by the laws of the nation of the person
whose succession is in question, whatever may be the nature of the
property and the country where it may be situate."
From what has been said, it is, we think, manifest that the petition
submitted to the court below on October 31, 1916, was entirely
insufficient to warrant the setting aside of the other probating the will
in question, whether said petition be considered as an attack on the
validity of the decree for error apparent, or whether it be considered
as an application for a rehearing based upon the new evidence
submitted in the affidavits which accompany the petition. And in this
latter aspect the petition is subject to the further fatal defect that it
was not presented within the time allowed by law.
It follows that the trial court committed no error in denying the relief
sought. The order appealed from is accordingly affirmed with costs.
So ordered.

50

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-2200

August 2, 1950

In re Will of Victor Bilbao. RAMON N. BILBAO, petitionerappellant,

vs.
DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA
BILBAO, CATALINA BILBAO, FILEMON ABRINGE and
FRANCISCO ACADEMIA, oppositors-appellee.
MONTEMAYOR, J.:
This is an appeal from a decision of the Court of First Instance of
Negros Oriental denying the petition for admission to probate of the
last will and testament of Victor S. Bilbao who died on July 13, 1943,
which petition was filed by his widow and cotestator Ramona M.
Navarro.
The will in question was executed on October 6, 1931, on a single
page or sheet by the deceased Victor Bilbao jointly with his wife
Ramona M. Navarro. The two testators in their testament directed
that "all of our respective private properties both real and personal,
and all of our conjugal properties, and any other property belonging
to either or both of us, be given and transmitted to anyone or either of
us, who may survive the other, or who may remain the surviving
spouse of the other."
The petition for probate was opposed by one Filemon Abringe, a near
relative of the deceased, among other grounds, that the alleged will
was executed by the husband and wife for their reciprocal benefit and
therefore not valid, and that it was not executed and attested to as
required by law. After hearing, the trial court found the will to have
been executed conjointly by the deceased husband and wife for their
reciprocal benefit, and that a will of that kind is neither contemplated
by Act No. 190, known as the Code of Civil Procedure nor permitted
by article 669 of the Civil Code which provides:
Two or more persons cannot make a will conjointly or in
the same instrument, either for their reciprocal benefit or
for the benefit of a third person.
The only assignment of error made in the appeal is that "the lower
court erred in not finding that a joint and reciprocal will particularly
between husband and wife is valid under the present law." The thesis
of the appellant is, that "Chapter XXXI, particularly sections 614,
618, Act 190, appears to be a complete enactment on the subject of
execution of wills and may thus be regarded as the expression of the
whole law thereon, and that it must be deemed to have impliedly
repealed the provision of the Civil Code (Title III, Chapter I) on the
matter ;" that inasmuch as the present law on wills as embodied in the
Code of Civil Procedure has been taken from American law, it should
be interpreted in accordance with the said law, and because joint and
reciprocal wills are neither regarded as invalid nor on the contrary
they are allowed, then article 669 of the Civil Code prohibiting the
execution of joint wills whether reciprocal or for the benefit of a third
party should be considered as having been repealed and superseded
by the new law.
We have made a rather extensive study of the cases decided by our
Supreme Court covering the field of wills, with particular attention to
any reference to or ruling on article 669 of the Civil Code but we
have failed to find any case wherein that particular codal provision
has been discussed or applied, declaring it either repealed or still in
force. The sole question and issue squarely raised in this appeal is,
therefore one of first impression and naturally we are constrained to
act and to proceed with care and caution, realizing the importance
and far-reaching effects of any doctrine to be laid down by us in the
present case.
We cannot agree to the contention of the appellant that the provisions
of the Code of Civil Procedure on wills have completely superseded
Chapter I, Title III of the Civil Code on the same subject matter,
resulting in the complete repeal of said Civil Code provisions. In the
study we have made of this subject, we have found a number of cases

decided by this court wherein several articles of the Civil Code

regarding wills have not only been referred to but have also been
applied side by side with the provisions of the Code of Civil
Procedure.
In the case of in the matter of the will Kabigting (14 Phil., 463),
where the will was executed in the year 1908, articles 662 and 663 of
the Civil Code regarding capacity and incapacity of persons to
dispose by will, have been cited and applied together with section
618 of the Code of Civil Procedure regarding requisites of wills.
In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772),
article 666 of the Civil Code regarding mental capacity of the testator
has been cited and applied together with section 614 and 634 of the
Code of Civil Procedure regarding a will executed in 1924.
In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the
Civil Code was cited in the dissenting opinion of Mr. Justice Torres.
In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of
Calderon (26 Phil., 333); Natividad vs. Gabino (36 Phil., 663)
wherein the wills involved had been executed after the enactment of
the Code of Civil Procedure, particularly the sections regarding wills,
article 675 of the Civil Code regarding interpretation of wills was
cited and applied.
In the case of Samson vs. Naval (41 Phil., 838), article 739 of the
Civil Code regarding revocation of wills has been applied in harmony
with section 623 of the Code of Civil Procedure. The will involved
was executed in 1915 when the Code of Civil Procedure was already
in force.
The above-cited authorities all go to show that it is not exactly correct
to say that the provisions of the Code of Civil Procedure regarding
wills completely cover the subject matter and therefore have
superseded the provisions of the Civil Code on the point.
It is also contended that in the case of Macrohon Ong Ham vs.
Saavedra (51 Phil., 267) a will executed in the year 1923, which was
made jointly by husband and wife in the same instrument, was
admitted to probate by the Court of First Instance of Zamboanga and
the decision was affirmed by this court, thereby proving that this
tribunal has disregarded the prohibition regarding the execution of
wills conjointly under article 669 of the Civil Code, meaning that said
article has already been repealed. After examining said case we find
the contention untenable. It is true that the will already described was
allowed probate by the trial court, but there was no appeal from the
order approving the will on the ground of its validity, but only on the
manner the properties involved were to be distributed or otherwise
disposed of. The Supreme Court never touched this point of
invalidity nor the applicability of article 669 of the Civil Code, but
merely ruled that a testator may die both testate and intestate,
depending upon the properties sought to be disposed of by him and
those to be inherited by his heirs on intestate succession when not
covered by the will. As a rule this Tribunal does not pass upon the
legality, enforceability, or applicability of a law unless that the point
is raised and put in issue, and it is necessary to rule upon it in order to
determine the case.
The provision of article 669 of the Civil Code prohibiting the
execution of a will by two or more persons conjointly or in the same
instrument either for their reciprocal benefit or for the benefit of a
third person, is not unwise and is not against public policy. The
reason for this provision, especially as regards husbands and wife is
that when a will is made jointly or in the same instrument, the spouse
who is more aggressive, stronger in will or character and dominant is
liable to dictate the terms of the will for his or her own benefit or for
that of third persons whom he or she desires to favor. And, where the
will is not only joint but reciprocal, either one of the spouses who
may happen to be unscrupulous, wicked, faithless, or desperate,
knowing as he or she does the terms of the will whereby the whole
property of the spouses both conjugal and paraphernal goes to the
survivor, may be tempted to kill or dispose of the other.

51

SUCCESSION. SET 7. (cases 92-111)

Considering the wisdom of the provisions of this article 669 and the
fact that it has not been repealed, at least not expressly, as well as the
consideration that its provisions are not incompatible with those of
the Code of Civil Procedure on the subject of wills, we believe and
rule that said article 669 of the Civil Code is still in force. And we are
not alone in this opinion. Mr. Justice Willard as shown by his notes
on the Civil Code, on page 18 believes that this article 669 is still in
force. Sinco and Capistrano in their work on the Civil Code, Vol. II,
page 33, favorably cite Justice Willard's opinion that this article is
still in force. Judge Camus in his book on the Civil Code does not
include this article among those he considers repealed. Lastly, we
find that this article 669 has been reproduced word for word in article
818 of the New Civil Code (Republic Act No. 386). The implication
is that the Philippine Legislature that passed this Act and approved
the New Civil Code, including the members of the Code Commission
who prepared it, are of the opinion that the provisions of article 669
of the old Civil Code are not incompatible with those of the Code of
Civil Procedure.
In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R.
No. 1627 -R, July 1, 1948; 46 Off. Gaz., reference to this article 669
of the Civil Code, though indirectly. In the will involved therein, the
testator Rodriguez instituted his wife his universal heir and the latter
in her separate will equally instituted her husband Rodriguez as her
universal heir; in other words they were reciprocal beneficiaries in
their respective separate wills. Opposition to the probate of the will of
Rodriguez was base on the prohibition contained in article 669 of the
Civil Code. The Court of Appeals said that what the law prohibits
under said article is two or more persons making a will conjointly or
in the same instrument and not reciprocity in separate wills.
In conclusion, we believe and hold that the provision of the Code of
Civil procedure regarding wills have not repealed all the articles of
the old Civil Code on the same subject matter, and that article 669 of
the Civil Code is not incompatible or inconsistent with said provision
of the Article 669 of the Civil Code is still in force.
In view of the foregoing, the decision appealed form, is hereby
affirmed, with costs.

52

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-2071

September 19, 1950

Testate estate of Isabel V. Florendo, deceased. TIRSO

DACANAY, petitioner-appellant,
vs.
PEDRO V. FLORENDO, ET AL., oppositor-appellees.
OZAETA, J.:
This is a special proceeding commenced in the Court of First Instance
of La Union to probate a joint and reciprocal will executed by the
spouses Isabel V. Florendo and Tirso Dacanay on October 20, 1940.
Isabel V. Florendo having died, her surviving spouse Tirso Dacanay
is seeking to probate said joint and reciprocal will, which provides in
substance that whoever of the spouses, joint testators, shall survive
the other, shall inherit all the properties of the latter, with an
agreement as to how the surviving spouse shall dispose of the
properties in case of his or her demise.
The relatives of the deceased Isabel V. Florendo opposed the probate
of said will on various statutory grounds.
Before hearing the evidence the trial court, after requiring and
receiving from counsel for both parties written arguments on the
question of whether or not the said joint and reciprocal will may be
probated in view of article 669 of the Civil Code, issued an order
dismissing the petition for probate on the ground that said will is null
and void ab initio as having been executed in violation of article 669
of the Civil Code. From that order the proponent of the will has
appealed.
Article 669 of the Civil Code reads as follows:
ART. 669. Two or more persons cannot make a will
conjointly or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
We agree with appellant's view, supported by eminent commentators,
that the prohibition of article 669 of the Civil Code is directed against
the execution of a joint will, or the expression by two or more
testators of their wills in a single document and by one act, rather
than against mutual or reciprocal wills, which may be separately
executed. Upon this premise, however, appellant argues that article
669 of the Civil Code has been repealed by Act. No. 190, which he
claims provides for and regulates the extrinsic formalities of wills,
contending that whether two wills should be executed conjointly or
separately is but a matter of extrinsic formality.

been applied side by side with the provisions of the Code of

Civil Procedure.
xxx

xxx

xxx

The provision of article 669 of the Civil Code prohibiting

the execution of a will by two or more persons conjointly
or in the same instrument either for their reciprocal benefit
or for the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision,
especially as regards husband and wife, is that when a will
is made jointly or in the same instrument, the spouse who is
more aggressive, stronger in will or character and dominant
is liable to dictate the terms of the will for his or her own
benefit or for that of third persons whom he or she desires
to favor. And, where the will is not only joint but
reciprocal, either one of the spouses who may happen to be
unscrupulous, wicked, faithless or desperate, knowing as he
or she does the terms of the will whereby the whole
property of the spouses both conjugal and paraphernal goes
to the survivor, may be tempted to kill or dispose of the
other.
Considering the wisdom of the provisions of this article
669 and the fact that it has not been repealed, at least not
expressly, as well as the consideration that its provisions
are not incompatible with those of the Code of Civil
Procedure on the subject of wills, we believe and rule that
said article 669 of the Civil Code is still in force. And we
are not alone in this opinion. Mr. Justice Willard as shown
by his Notes on the Civil Code, on page 48 believes that
this article 669 is still in force. Sinco and Capistrano in
their work on the Civil Code, Vol. II, page 33, favorably
cite Justice Willard's opinion that this article is still in force.
Judge Camus in his book on the Civil Code does not
include this article among those he considers repealed.
Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code
(Republic Act No. 386). The implication is that the
Philippine Legislature that passed this Act and approved the
New Civil Code, including the members of the Code
Commission who prepared it, are of the opinion that the
provisions of article 669 of the old Civil Code are not
incompatible with those of the Code of Civil Procedure.
In view of the foregoing, the order appealed from is affirmed, with
costs against the appellant.

The question now raised by appellant has recently been decided by

this court adversely to him in In re Will of Victor Bilbao, supra, p.
144. It appears in that case that on October 6, 1931, the spouses
Victor Bilbao and Ramona M. Navarro executed a will conjointly,
whereby they directed that "all of our respective private properties
both real and personal, and all of our conjugal properties, and any
other property belonging to either or both of us, be given and
transmitted to anyone or either of us, who may survive the other, or
who may remain the surviving spouse of the other." That will was
denied probate by the Court of First Instance of Negros Oriental on
the ground that it was prohibited by article 669 of the Civil Code. The
surviving spouse as proponent of the joint will also contended that
said article of the Civil Code has been repealed by sections 614 and
618 of the Code of Civil Procedure, Act No. 190. In deciding that
question this court, speaking through Mr. Justice Montemayor, said:
We cannot agree to the contention of the appellant that the
provisions of the Code of Civil Procedure on wills have
completely superseded Chapter I, Title III of the Civil Code
on the same subject matter, resulting in the complete repeal
of said Civil Code provisions. In the study we have made of
this subject, we have found a number of cases decided by
this court wherein several articles of the Civil Code
regarding wills have not only been referred to but have also

53

SUCCESSION. SET 7. (cases 92-111)

G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA
SANTIAGO, respondents.
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals,
First Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523R which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda
Santiago filed a petition with the Court of First Instance of Rizal
docketed as Special Proceedings No. 3617, for the probate of a will
alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and
executrix.
There is no dispute in the records that the late Isabel Andres Gabriel
died as a widow and without issue in the municipality of Navotas,
province of Rizal her place of residence, on June 7, 1961 at the age of
eighty-five (85), having been born in 1876. It is likewise not
controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and
that private respondent, with her husband and children, lived with the
deceased at the latters residence prior an- d up to the time of her
death.
The will submitted for probate, Exhibit "F", which is typewritten and
in Tagalog, appears to have been executed in Manila on the 15th day
of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were
written. The signatures of the deceased Isabel Gabriel appear at the
end of the will on page four and at the left margin of all the pages.
The attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na
ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan
sa ibaba nito, ay pagpapatutuo na ipinakilala
ipinaalam at ipinahayag sa amin ni Isabel Gabriel
na ang kasulatang ito na binubuo ng Limang
Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING
HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel
Gabriel ang nasabing testamento sa ibaba o ilalim
ng kasulatan na nasa ika apat na dahon (page
four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on
the left hand margin of each and every page), sa
harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng patunay ng mga saksi at
sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the
signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R.
Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for
Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two
Gimpayas. Their signatures also appear on the left margin of all the
other pages. The WW is paged by typewritten words as follows:

"Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon"

and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the
Catholic Cemetery of Navotas, Rizal in accordance with the rites of
the Roman Catholic Church, all expenses to be paid from her estate;
that all her obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her
brother Santiago Gabriel, and her nephews and nieces, Benjamin,
Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all
surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private
respondent Lutgarda Santiago, who was described in the will by the
testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan
at minahal na katulad ng isang tunay na anak" and named as
universal heir and executor, were bequeathed all properties and
estate, real or personal already acquired, or to be acquired, in her
testatrix name, after satisfying the expenses, debts and legacies as
aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein
petitioner, assailing the document purporting to be the will of the
deceased on the following grounds:
1. that the same is not genuine; and in the
alternative
2. that the same was not executed and attested as
required by law;
3. that, at the time of the alleged execution of the
purported wilt the decedent lacked testamentary
capacity due to old age and sickness; and in the
second alternative
4. That the purported WW was procured through
undue and improper pressure and influence on
the part of the principal beneficiary, and/or of
some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1,
1962. After trial, the court a quo rendered judgment, the summary
and dispositive portions of which read:
Passing in summary upon the grounds advanced
by the oppositor, this Court finds:
1. That there is no iota of evidence to support the
contentio that the purported will of the deceased
was procured through undue and improper
pressure and influence on the part of the
petitioner, or of some other person for her
benefit;
2. That there is insufficient evidence to sustain
the contention that at the time of the alleged
execution of the purported will, the deceased
lacked testamentary capacity due to old age and
sickness;
3. That sufficient and abundant evidence warrants
conclusively the fact that the purported will of the
deceased was not executed and attested as
required by law;
4. That the evidence is likewise conclusive that
the document presented for probate, Exhibit 'F' is
not the purported win allegedly dictated by the
deceased, executed and signed by her, and
attested by her three attesting witnesses on April
15, 1961.

54

SUCCESSION. SET 7. (cases 92-111)

WHEREFORE, Exhibit "F", the document
presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here
by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to
respondent Court, hence, the only issue decided on appeal was
whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision now under
review, holding that the will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961 in the presence of the
three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed
probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of
the aforesaid decision and such motion was opposed 4 by petitionerappellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court,
Former Special First Division, by Resolution 6 denied the motion for
reconsideration stating that:
The oppositor-appellee contends that the
preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel
was not executed in accordance with law because
the same was signed on several occasions, that
the testatrix did not sign the will in the presence
of all the instrumental witnesses did not sign the
will in the presence of each other.
The resolution of the factual issue raised in the
motion for reconsideration hinges on the
appreciation of the evidence. We have carefully
re-examined the oral and documentary evidence
of record, There is no reason to alter the findings
of fact in the decision of this Court sought to be
set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales
contends that respondent Court abused its discretion and/or acted
without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating
on the petition but without giving due course resolved, in the
Resolution dated Oct. 11, 1973 to require the respondents to
comment thereon, which comment was filed on Nov. 14, 1973. Upon
consideration of the allegations, the issues raised and the arguments
adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on
November 26, 1973, 9 the question raised being factual and for
insufficient showing that the findings of fact by respondent Court
were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes
fried a Motion for Reconsideration 10 which private respondent
answered by way of her Comment or Opposition 11 filed on January
15, 1974. A Reply and Rejoinder to Reply followed. Finally, on
March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the
document, Exhibit "F" was executed and attested as required by law
when there was absolutely no proof that the three instrumental
witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower
court that the preparation and execution of the win Exhibit "F", was
unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not
previously furnished with the names and residence certificates of the

witnesses as to enable him to type such data into the document

Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and
"Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding
that it was incredible that Isabel Gabriel could have dictated the wilt
Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial
court that Matilde Orobia was not physically present when the Will
Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave
undue importance to the picture takings as proof that the win was
improperly executed.
VIII. The Court of Appeals erred in holding that the grave
contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction
or has so far departed from the accepted and usual course of judicial
proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial
court and admitting to probate Exhibit "F", the alleged last will and
testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same
are substantially factual in character and content. Hence, at the very
outset, We must again state the oft-repeated and well-established rule
that in this jurisdiction, the factual findings of the Court of Appeals
are not reviewable, the same being binding and conclusive on this
Court. This rule has been stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
393), 13 and in the more recent cases of Baptisia vs. Carillo and
CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976,
74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned
by the then Justice Recto, it has been well-settled that the jurisdiction
of tills Court in cases brought to us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a decision
exactly a month later, this Court, speaking through the then Justice
Laurel, it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its findings of
fact ...
Stated otherwise, findings of facts by the Court of Appeals, when
supported by substantive evidence are not reviewable on appeal by
certiorari. Said findings of the appellate court are final and cannot be
disturbed by Us particularly because its premises are borne out by the
record or based upon substantial evidence and what is more, when
such findings are correct. Assignments of errors involving factual
issues cannot be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The Supreme
Court is not at liberty to alter or modify the facts as set forth in the
decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial
court, a minute scrutiny by the Supreme Court is in order, and resort
to duly-proven evidence becomes necessary. The general rule We
have thus stated above is not without some recognized exceptions.

55

SUCCESSION. SET 7. (cases 92-111)

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

under the provisions of the Naturalization Law (Section 7,

Commonwealth Act No. 473 as amended).

Petitioner, in her first assignment, contends that the respondent Court

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

In probate proceedings, the instrumental witnesses are not character

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

We find no merit to petitioner's first assignment of error. Article 820

of the Civil Code provides the qualifications of a witness to the
execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the
age of eighteen years or more, and not blind, deaf
or dumb, and able to read and write, may be a
witness to the execution of a will mentioned in
article 806 of this Code. "Art. 821. The following
are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of
falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory requirement that the witness
testify initially or at any time during the trial as to his good standing
in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony
may be believed and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by
or deduced from his answers to the questions propounded to him, that
his age (18 years or more) is shown from his appearance, testimony ,
or competently proved otherwise, as well as the fact that he is not
blind, deaf or dumb and that he is able to read and write to the
satisfaction of the Court, and that he has none of the disqualifications
under Article 821 of the Civil Code. We reject petitioner's contention
that it must first be established in the record the good standing of the
witness in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by
the opposing party.
We also reject as without merit petitioner's contention that the term
"credible" as used in the Civil Code should be given the same
meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by
two character witnesses who must prove their good standing in the
community, reputation for trustworthiness and reliableness, their
honesty and uprightness. The two witnesses in a petition for
naturalization are character witnesses in that being citizens of the
Philippines, they personally know the petitioner to be a resident of
the Philippines for the period of time required by the Act and a
person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified

In the case at bar, the finding that each and everyone of the three
instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and
Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of
Appeals, which findings of fact this Tribunal is bound to accept and
rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been
shown that anyone of them is below 18 years of age, of unsound
mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will,
other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testator's name written by some other
person in his presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the presence of the
testator and of one another, While the petitioner submits that Article
820 and 821 of the New Civil Code speak of thecompetency of a
witness due to his qualifications under the first Article and none of
the disqualifications under the second Article, whereas Article 805
requires the attestation of three or more credible witnesses, petitioner
concludes that the term credible requires something more than just
being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible
witness under Article 805.
Petitioner cites American authorities that competency and credibility
of a witness are not synonymous terms and one may be a competent
witness and yet not a credible one. She exacerbates that there is no
evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the
community since one was a family driver by profession and the
second the wife of the driver, a housekeeper. It is true that Celso
Gimpaya was the driver of the testatrix and his wife Maria Gimpaya,
merely a housekeeper, and that Matilde Orobia was a piano teacher to
a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do
not disqualify him to be a competent testamentary witness. (Molo
Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate
Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or
more credible witnesses mentioned in Article 805 of the Civil Code
are those mentioned in Article 820 of the same Code, this being
obvious from that portion of Article 820 which says "may be Q
witness to the execution of a will mentioned in Article 805 of this
Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus,
in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held
that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to
facts from or upon hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344,
the Supreme Court held that "Section 620 of the same Code of Civil
Procedure provides that any person of sound mind, and of the age of
eighteen years or more, and not blind, deaf, or dumb and able to read
and write, may be a witness to the execution of a will. This same
provision is reproduced in our New Civil Code of 1950, under Art.
820. The relation of employer and employee, or being a relative to
the beneficiary in a win, does not disqualify one to be a witness to a
will. The main qualification of a witness in the attestation of wills, if
other qualifications as to age, mental capacity and literacy are

56

SUCCESSION. SET 7. (cases 92-111)

present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to
testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs.
Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible
witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann.
Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to
attestation of wins means 'competent witness that
is, one competent under the law to testify to fact
of execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex .
Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills
requiring that a will shall be attested by two
credible witnesses means competent; witnesses
who, at the time of attesting the will, are legally
competent to testify, in a court of justice, to the
facts attested by subscribing the will, the
competency being determined as of the date of
the execution of the will and not of the timr it is
offered for probate, Smith vs. Goodell 101 N.E.
255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating
to wills, means competent witnesses that is,
such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental
incapacity, interest, or the commission of crimes,
or other cause excluding them from testifying
generally, or rendering them incompetent in
respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co
152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental
witness to a will is determined by the statute, that is Art. 820 and 821,
Civil Code, whereas his credibility depends On the appreciation of
his testimony and arises from the belief and conclusion of the Court
that said witness is telling the truth. Thus, in the case of Vda. de
Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005,
May 3, 1968, the Supreme Court held and ruled that: "Competency as
a witness is one thing, and it is another to be a credible witness, so
credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he
is competent, but may thereafter decide whether to believe or not to
believe his testimony." In fine, We state the rule that the instrumental
witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the
disqualifications under Article 821 and for their testimony to be
credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the
witnesses have a good standing in the community or that they are
honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be
competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject
petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth
assignments of errors, petitioner disputes the findings of fact of the
respondent court in finding that the preparation and execution of the

will was expected and not coincidental, in finding that Atty. Paraiso
was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three
typewritten lines under the typewritten words "pangalan" and
"tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion, in holding
credible that Isabel Gabriel could have dictated the will without note
or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial court gave undue importance
to the picture takings as proof that the will was improperly executed,
and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have
previously laid down that the findings of fact of the appellate court
are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter.
We are convinced that the appellate court's findings are sufficiently
justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of
Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it
was coincidental that Atty. Paraiso was available at the moment
impugns the finding of the Court of Appeals that although Atty.
Paraiso admitted the visit of Isabel Gabriel and of her companions to
his office on April 15, 1961 was unexpected as there was no prior
appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier
requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso Gimpaya
that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel
told him that he was going to witness the making of her will, as well
as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which
was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's
decision.
The respondent Court further found the following facts: that Celso
Gimpaya and his wife Maria Gimpaya obtained residence certificates
a few days before Exhibit "F" was executed. Celso Gimpaya's
residence certificate No. A-5114942 was issued at Navotas, Rizal on
April 13, 1961 while Maria Gimpaya's residence certificate No. A5114974 was issued also at Navotas, Rizal on April 14, 1961. The
respondent Court correctly observed that there was nothing surprising
in these facts and that the securing of these residence certificates two
days and one day, respectively, before the execution of the will on
April 15, 1961, far from showing an amazing coincidence, reveals
that the spouses were earlier notified that they would be witnesses to
the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the
excursion to the office of Atty. Paraiso was planned by the deceased,
which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they
proceeded by car to Matilde Orobia's house in Philamlife, Quezon
City to fetch her and from there, all the three witnesses (the
Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed
for about ten to fifteen minutes at the clinic of Dr. Chikiamco before
they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that
previous to the day that. the will was executed on April 15, 1961,
Isabel Gabriel had requested him to help her in the execution of her
will and that he told her that if she really wanted to execute her will,
she should bring with her at least the Mayor of Navotas, Rizal and a
Councilor to be her witnesses and that he (Atty. Paraiso) wanted a
medical certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this evidence,
the appellate court rightly concluded, thus: "It is, therefore, clear that

57

SUCCESSION. SET 7. (cases 92-111)

the presence of Isabel Gabriel and her witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya including the photographer in
the law office of Atty. Paraiso was not coincidental as their gathering
was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not
previously furnished with the names and residence certificates of the
witnesses as to enable him to type such data into the document
Exhibit ' L which the petitioner assails as contradictory and
irreconcilable with the statement of the Court that Atty. Paraiso was
handed a list (containing the names of the witnesses and their
respective residence certificates) immediately upon their arrival in the
law office by Isabel Gabriel and this was corroborated by Atty.
Paraiso himself who testified that it was only on said occasion that he
received such list from Isabel Gabriel, We cannot agree with
petitioner's contention. We find no contradiction for the, respondent
Court held that on the occasion of the will making on April 15, 1961,
the list was given immediately to Atty. Paraiso and that no such list
was given the lawyer in any previous occasion or date prior to April
15, 1961.
But whether Atty. Paraiso was previously furnished with the names
and residence certificates of the witnesses on a prior occasion or on
the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano Paraiso, subscribed and
sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15,
1961. And since Exhibit "F" is a notarial will duly acknowledged by
the testatrix and the witnesses before a notary public, the same is a
public document executed and attested through the intervention of the
notary public and as such public document is evidence of the facts in
clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such
evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the
fact that the three typewritten lines under the typewritten words
"pangalan ' and "tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion
merits Our approval because tills conclusion is supported and borne
out by the evidence found by the appellate court, thus: "On page 5 of
Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.
date issued" and place issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274 issued on February 24,
1961 at Navotas Rizal appears to be in typewritten form while the
names, residence tax certificate numbers, dates and places of issuance
of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with
Atty. Paraiso's even the sale must be made to close relatives; and the
seventh was the appointment of the appellant Santiago as executrix of
the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the
certificates of title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of
the properties disposed and the docket number of a special
proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible
that Isabel Gabriel could have dictated the will Exhibit "F" without
any note or document to Atty. Paraiso, considering that Isabel Gabriel
was an old and sickly woman more than eighty-one years old and had
been suffering from a brain injury caused by two severe blows at her
head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is
within the competency of the respondent appellate court in
determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless
hold that the conclusion reached by the Court of Appeals that the
testatrix dictated her will without any note or memorandum appears
to be fully supported by the following facts or evidence appearing on
record. Thus, Isabel Gabriel, despite her age, was particularly active
in her business affairs as she actively managed the affairs of the
movie business ISABELITA Theater, paying the aparatistas herself

until June 4, 1961, 3 days before her death. She was the widow of the
late Eligio Naval, former Governor of Rizal Province and acted as
coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and
understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without
any note or memorandum, a fact unanimously testified to by the three
attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The
evidence, both testimonial and documentary is, according to the
respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix
and the other two witnesses, Celso Gimpaya and Maria Gimpaya.
Such factual finding of the appellate court is very clear, thus: "On the
contrary, the record is replete with proof that Matilde Orobia was
physically present when the will was signed by Isabel Gabriel on
April '15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission
that she gave piano lessons to the child of the appellant on
Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to
witness the will on that day is purely conjectural. Witness Orobia
did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that
even if April 15, 1961 were a Saturday, she gave no piano lessons on
that day for which reason she could have witnessed the execution of
the will. Orobia spoke of occasions when she missed giving piano
lessons and had to make up for the same. Anyway, her presence at the
law office of Atty. Paraiso was in the morning of April 15, 1961 and
there was nothing to preclude her from giving piano lessons on the
afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and
Maria Gimpaya that Matilde was present on April 15, 1961 and that
she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence
which is the will itself, the attestation clause and the notarial
acknowledgment overwhelmingly and convincingly prove such fact
that Matilde Orobia was present on that day of April 15, 1961 and
that she witnessed the will by signing her name thereon and
acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the
best evidence as to the date of signing because it preserves in
permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause
which is made for the purpose of preserving in permanent form a
record of the facts attending the execution of the will, so that in case
of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec.
132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of
Appeals in holding that the trial court gave undue importance to the
picture-takings as proof that the win was improperly executed, We
agree with the reasoning of the respondent court that: "Matilde
Orobia's Identification of the photographer as "Cesar Mendoza",
contrary to what the other two witnesses (Celso and Maria Gimpaya)
and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr.,
is at worst a minor mistake attributable to lapse of time. The law does
not require a photographer for the execution and attestation of the
will. The fact that Miss Orobia mistakenly Identified the
photographer as Cesar Mendoza scarcely detracts from her testimony
that she was present when the will was signed because what matters
here is not the photographer but the photograph taken which clearly
portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. "
Further, the respondent Court correctly held: "The trial court gave
undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence
however, heavily points to only one occasion of the execution of the
will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic
and positive when they spoke of this occasion. Hence, their
Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."

58

SUCCESSION. SET 7. (cases 92-111)

Continuing, the respondent Court declared: "It is true that the second
picture-taking was disclosed at the cross examination of Celso
Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was admittedly no longer present
was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on
April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the execution or
probate of a will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before
the trial court. On the other hand, the respondent Court of Appeals
held that said contradictions, evasions and misrepresentations had
been explained away. Such discrepancies as in the description of the
typewriter used by Atty. Paraiso which he described as "elite" which
to him meant big letters which are of the type in which the will was
typewritten but which was Identified by witness Jolly Bugarin of the
N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually
it was Benjamin Cifra, Jr. these are indeed unimportant details
which could have been affected by the lapse of time and the treachery
of human memory such that by themselves would not alter the
probative value of their testimonies on the true execution of the will,
(Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected
that the testimony of every person win be Identical and coinciding
with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human
experience teach us "that contradictions of witnesses generally occur
in the details of certain incidents, after a long series of questionings,
and far from being an evidence of falsehood constitute a
demonstration of good faith. In as much as not all those who witness
an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details;
hence the contradictions in their testimony." (Lopez vs. Liboro, 81
Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court
should not have been disturbed by the respondent appellate court
because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions.
The right of the Court of Appeals to review, alter and reverse the
findings of the trial court where the appellate court, in reviewing the
evidence has found that facts and circumstances of weight and
influence have been ignored and overlooked and the significance of
which have been misinterpreted by the trial court, cannot be disputed.
Findings of facts made by trial courts particularly when they are
based on conflicting evidence whose evaluation hinges on questions
of credibility of contending witnesses hes peculiarly within the
province of trial courts and generally, the appellate court should not
interfere with the same. In the instant case, however, the Court of
Appeals found that the trial court had overlooked and misinterpreted
the facts and circumstances established in the record. Whereas the
appellate court said that "Nothing in the record supports the trial
court's unbelief that Isabel Gabriel dictated her will without any note
or document to Atty. Paraiso;" that the trial court's conclusion that
Matilde Orobia could not have witnessed anybody signing the alleged
will or that she could not have witnessed Celso Gimpaya and Maria
Gimpaya sign the same or that she witnessed only the deceased
signing it, is a conclusion based not on facts but on inferences; that
the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed
and that there is nothing in the entire record to support the conclusion
of the court a quo that the will signing occasion was a mere
coincidence and that Isabel Gabriel made an appointment only with
Matilde Orobia to witness the signing of her will, then it becomes the
duty of the appellate court to reverse findings of fact of the trial court
in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the
rule that the judgment of the Court of Appeals is conclusive as to the
facts and cannot be reviewed by the Supreme Court. Again We agree
with the petitioner that among the exceptions are: (1) when the
conclusion is a finding grounded entirely on speculations, surmises or

conjectures; (2) when the inference is manifestly mistaken, absurd or

impossible; (3) when there is a grave abuse of discretion; (4) when
the presence of each other as required by law. " Specifically, We
affirm that on April 15, 1961 the testatrix Isabel Gabriel, together
with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano
Paraiso at the Bank of P.I. Building, Manila in the morning of that
day; that on the way, Isabel Gabriel obtained a medical certificate
from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's office and told the lawyer that she wanted her
will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate
what she wanted to be written in the will and the attorney wrote down
the dictation of Isabel Gabriel in Tagalog, a language known to and
spoken by her; that Atty. Paraiso read back to her what he wrote as
dictated and she affirmed their correctness; the lawyer then typed the
will and after finishing the document, he read it to her and she told
him that it was alright; that thereafter, Isabel Gabriel signed her name
at the end of the will in the presence of the three witnesses Matilde
Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand
margin of each and every page of the document in the presence also
of the said three witnesses; that thereafter Matilde Orobia attested the
will by signing her name at the end of the attestation clause and at the
left-hand margin of pages 1, 2, 3 and 5 of the document in the
presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the
will at the bottom of the attestation clause and at the left-hand margin
of the other pages of the document in the presence of Isabel Gabriel,
Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed
suit, signing her name at the foot of the attestation clause and at the
left-hand margin of every page in the presence of Isabel Gabriel,
Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his
Notarial Register. On the occasion of the execution and attestation of
the will, a photographer took pictures, one Exhibit "G", depicting
Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria
Gimpaya and Atty. Paraiso, taken on said occasion of the signing of
the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her
at least the Mayor and a Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand the Identities of the three
attesting witnesses until the latter showed up at his law office with
Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not
controverted that he wrote down in his own hand the date appearing
on page 5 of Exhibit "F" dissipates any lingering doubt that he
prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it
was credible that Isabel Gabriel could have dictated the will, Exhibit
"F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on record as
stated in the decision under review, thus: "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso. On the contrary, all
the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper
that she handed to said lawyer she had no note or document. This fact
jibes with the evidence which the trial court itself believed was
unshaken that Isabel Gabriel was of sound disposing memory
when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not
complicated but quite simple. The first was Isabel Gabriel's wish to
be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for
her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her
brother Santiago Gabriel; the fourth was a listing of her 13 nephews
and nieces including oppositor-appellee Rizalina Gabriel and the
amount for each legatee the fifth was the institution of the petitionerappellant, Lutgarda Santiago as the principal heir mentioning in
general terms seven (7) types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of appellant
Lutgarda Santiago but prohibiting the sale of such properties to
anyone except in extreme situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact are
conflicting, (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to the

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SUCCESSION. SET 7. (cases 92-111)

admissions of both appellant and appellee. (Roque vs. Buan, et al.,
G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co.,
G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R.
No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar
does not fall within any of the exceptions enumerated above. We
likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions
are fully sustained by substantial evidence. We find no abuse of
discretion and We discern no misapprehension of facts. The
respondent Court's findings of fact are not conflicting. Hence, the
well-established rule that the decision of the Court of Appeals and its
findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in
its full force and effect, without qualification or reservation. The
above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to
which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be
rejected by Us as We find the respondent Court acted properly and
correctly and has not departed from the accepted and usual course of
judicial proceedings as to call for the exercise of the power of
supervision by the Supreme Court, and as We find that the Court of
Appeals did not err in reversing the decision of the trial court and
admitting to probate Exhibit "F", the last will and testament of the
deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its
summation and evaluation of the evidence on record is unassailable
that: "From the welter of evidence presented, we are convinced that
the will in question was executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and
witnessing the same in the the will on a table with Isabel Gabriel,
Celso Gimpaya and Maria Gimpaya sitting around the table. Atty.

Paraiso, after finishing the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel Gabriel,
Celso Gimpaya and another photographer arrived at the office of
Atty. Paraiso and told the lawyer that she wanted another picture
taken because the first picture did not turn out good. The lawyer told
her that this cannot be done because the will was already signed but
Isabel Gabriel insisted that a picture be taken, so a simulated signing
was performed during which incident Matilde Orobia was not
present.
Petitioner's exacerbation centers on the supposed incredibility of the
testimonies of the witnesses for the proponent of the will, their
alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best
evidence of the will making have testified in favor of the probate of
the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of
them are disinterested witnesses who stand to receive no benefit from
the testament. The signatures of the witnesses and the testatrix have
been identified on the will and there is no claim whatsoever and by
anyone, much less the petitioner, that they were not genuine. In the
last and final analysis, the herein conflict is factual and we go back to
the rule that the Supreme Court cannot review and revise the findings
of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
appealed from is hereby AFFIRMED, with costs against the
petitioner.
SO ORDERED.

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