G.R. No.

L-37453 May 25, 1979 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
RIZALINA GABRIEL GONZALES, petitioner, testamentong ito.
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents. 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
Francisco D. Rilloraza, Jr. for petitioners. 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
Angel A. Sison for private respondent. 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
GUERRERO, J.: 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
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea,
1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who
December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. * 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
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the satisfying the expenses, debts and legacies as aforementioned.
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. 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:

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- 1. that the same is not genuine; and in the alternative
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, 2. that the same was not executed and attested as required by law;
with her husband and children, lived with the deceased at the latters residence prior an- d up to the time of
her death. 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
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 4. That the purported WW was procured through undue and improper pressure and
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the influence on the part of the principal beneficiary, and/or of some other person for her
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at benefit.
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:
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:
PATUNAY NG MGA SAKSI
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
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 1. That there is no iota of evidence to support the contentio that the purported will of the
binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang deceased was procured through undue and improper pressure and influence on the part
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng of the petitioner, or of some other person for her benefit;
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 2. That there is insufficient evidence to sustain the contention that at the time of the
sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and alleged execution of the purported will, the deceased lacked testamentary capacity due to
every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay old age and sickness;
 3. That sufficient and abundant evidence warrants conclusively the fact that the purported I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
will of the deceased was not executed and attested as required by law; attested as required by law when there was absolutely no proof that the three instrumental witnesses were
credible witness
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 II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution
signed by her, and attested by her three attesting witnesses on April 15, 1961. of the win Exhibit "F", was unexpected and coincidental.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and
testament of the deceased Isabel Gabriel is here by DISALLOWED. residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten
issue decided on appeal was whether or not the will in question was executed and attested as required by words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses
law. The Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the were all present in the same occasion.
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 V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel
Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
each other as required by law, hence allow ed probate.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel
was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
Memoranda, 5and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:
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.
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 VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations
will in the presence of all the instrumental witnesses did not sign the will in the presence of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the
of each other. trial court erred in rejecting said testimonies.

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:
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 that his age (18 years or more) is shown from his appearance, testimony , or competently proved
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 witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness,
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 opposing party.
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.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof
that the three instrumental witnesses were credible witnesses. She argues that the 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.
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,
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
because such attributes are presumed of the witness unless the contrary is proved otherwise by the
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character witnesses who must prove their good
standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness.
The two witnesses in a petition for naturalization are character witnesses in that being citizens of the
Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and that said petitioner has in
their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way
disqualified under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as
amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution. And We agree with
the respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in
naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil
Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the
evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to
accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said
witnesses, much less has it been shown that anyone of them is below 18 years of age, of unsound mind,
deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another, While the petitioner submits
that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to his
qualifications under the first Article and none of the disqualifications under the second Article, whereas
Article 805 requires the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore, a witness in addition to
being competent under Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms
and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence
on record to show that the instrumental witnesses are credible in themselves, that is, that they are of good
standing in the community since one was a family driver by profession and the second the wife of the
driver, a housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria
Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the
testatrix But the relation of employer and employee much less the humble 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 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 characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without
credible witnesses means competent; witnesses who, at the time of attesting the will, are previous appointment for the preparation and execution of the win and that it was coincidental that Atty.
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 — Gabriel told him that he was going to witness the making of her will, as well as the testimony of Maria
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 respondent Court's decision.
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
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
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
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and that the securing of these residence
certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they would be
witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was
planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya
spouses that they started from the Navotas residence of the deceased with a photographer and Isabel
Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch
her and from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel
Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was
executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and
that he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of
Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate
from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From
this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel
Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer
in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit ' 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 established exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial
attestation clause which is made for the purpose of preserving in permanent form a record of the facts court where the appellate court, in reviewing the evidence has found that facts and circumstances of weight
attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or and influence have been ignored and overlooked and the significance of which have been misinterpreted by
other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. the trial court, cannot be disputed. Findings of facts made by trial courts particularly when they are based
745). 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
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and
gave undue importance to the picture-takings as proof that the win was improperly executed, We agree with misinterpreted the facts and circumstances established in the record. Whereas the appellate court said that
the reasoning of the respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note
Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that or document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed
the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya
does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia sign the same or that she witnessed only the deceased signing it, is a conclusion based not on facts but on
mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the
was present when the will was signed because what matters here is not the photographer but the conclusion that the will was improperly executed and that there is nothing in the entire record to support the
photograph taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, conclusion of the court a quo that the will signing occasion was a mere coincidence and that Isabel Gabriel
the respondent Court correctly held: "The trial court gave undue importance to the picture takings, jumping made an appointment only with Matilde Orobia to witness the signing of her will, then it becomes the duty of
therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over
only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, the lower courts.
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 Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of
Gabriel and Atty. Paraiso was superfluous." 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
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible;
cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first (3) when there is a grave abuse of discretion; (4) when the presence of each other as required by law. "
incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia,
longer present was wholly unnecessary if not pointless. What was important was that the will was duly Celso Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty.
executed and witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel
rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of Gabriel obtained a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving
the legal requisites for the execution or probate of a will. 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
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her
said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in name at the end of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and
the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big Maria Gimpaya and also at the left-hand margin of each and every page of the document in the presence
letters which are of the type in which the will was typewritten but which was Identified by witness Jolly also of the said three witnesses; that thereafter Matilde Orobia attested the will by signing her name at the
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the
be Cesar Mendoza when actually it was Benjamin Cifra, Jr.— these are indeed unimportant details which presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso
could have been affected by the lapse of time and the treachery of human memory such that by themselves Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the other
would not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria
Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin of
coinciding with each other with regard to details of an incident and that witnesses are not expected to every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty.
remember all details. Human experience teach us "that contradictions of witnesses generally occur in the Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the
details of certain incidents, after a long series of questionings, and far from being an evidence of falsehood occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
constitute a demonstration of good faith. In as much as not all those who witness an incident are impressed depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
in like manner, it is but natural that in relating their impressions, they should not agree in the minor details; taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429). 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
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the witnesses until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's
respondent appellate court because the trial court was in a better position to weigh and evaluate the claim which was not controverted that he wrote down in his own hand the date appearing on page 5 of
evidence presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well- 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 insisted that a picture be taken, so a simulated signing was performed during which incident Matilde Orobia
have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention was not present.
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 unbeliefPetitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the
three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that three instrumental witnesses who constitute the best evidence of the will making have testified in favor of
other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice
with the evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was of sound thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit
disposing memory when she executed her will. 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
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court
Isabel Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her cannot review and revise the findings of facts of the respondent Court of Appeals.
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 WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with
oppositor-appellee Rizalina Gabriel and the amount for each legatee the fifth was the institution of the costs against the petitioner.
petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of
properties; the sixth disposed of the remainder of her estate which she willed in favor of appellant Lutgarda
Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which SO ORDERED.
judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the
Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; 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
G.R. No. L-4067 November 29, 1951
In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO
GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero
Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the
following attestation clause:
We, the undersigned, by these presents to declare that the foregoing testament of
Antero Mercado was signed by himself and also by us below his name and of this
attestation clause and that of the left margin of the three pages thereof. Page three
the continuation of this attestation clause; this will is written in Ilocano dialect which
is spoken and understood by the testator, and it bears the corresponding number in
letter which compose of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the testator and all and
each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one
thousand nine hundred forty three, (1943) A.D.
pages of which the will consists and at the end thereof; (3) to certify that the three witnesses
signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero
Mercado caused Atty. Florentino Javier to write the testator's name under his express
direction, as required by section 618 of the Code of Civil Procedure. The herein petitioner
(who is appealing by way of certiorari from the decision of the Court of Appeals) argues,
however, that there is no need for such recital because the cross written by the testator after
his name is a sufficient signature and the signature of Atty. Florentino Javier is a
surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the
latter having been held sufficient by this Court in the cases of De Gala vs. Gonzales and
Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848;
Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero
Mercado or even one of the ways by which he signed his name. After mature reflection, we
are not prepared to liken the mere sign of the cross to a thumbmark, and the reason is
obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine there is a sufficient recital in
the attestation clause as to the signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So
ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.

(Sgd.) NUMERIANO (Sgd.) "ROSENDA

EVANGELISTA CORTES
(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of
Antero Mercado, followed below by "A reugo del testator" and the name of Florentino Javier.
Antero Mercado is alleged to have written a cross immediately after his name. The Court of
Appeals, reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that
the attestation clause failed (1) to certify that the will was signed on all the left margins of the
three pages and at the end of the will by Atty. Florentino Javier at the express request of the
testator in the presence of the testator and each and every one of the witnesses; (2) to
certify that after the signing of the name of the testator by Atty. Javier at the former's request
said testator has written a cross at the end of his name and on the left margin of the three
G.R. No. 42258 September 5, 1936
In re Will of the deceased Leoncia Tolentino. VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
DIAZ, J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution: That of January 29, 1935,
praying for the reconsideration of the decision of the court and that of the same date, praying for a new trial.
The oppositor bases her motion for reconsideration upon the following facts relied upon in her pleading:
1. That the testatrix did not personally place her thumbmark on her alleged will;
2. That the testatrix did not request Attorney Almario to write her name and surname on the spaces of the will
where she should place her thumbmarks;
3. That the will in question was not signed by the testatrix on the date indicated therein;
4. That the testatrix never made the will in question; and
5. That on the date the will in question was executed, the testatrix was no longer in a physical or mental condition
to make it.
We have again reviewed the evidence to determine once more whether the errors assigned by the oppositor in
her brief have not been duly considered, whether some fact or detail which might have led us to another
conclusion has been overlooked, or whether the conclusions arrived at in our decision are not supported by the
evidence. We have found that the testatrix Leoncia Tolentino, notwithstanding her advanced age of 92 years, was
in good health until September 1, 1933. She had a slight cold on said date for which reason she was visited by
her physician, Dr. Florencio Manuel. Said physician again visited her three or four days later and found her still
suffering from said illness but there was no indication that she had but a few days to live. She ate comparatively
well and conserved her mind and memory at least long after noon of September 7, 1933. She took her last
nourishment of milk in the morning of the following day, September 8, 1933, and death did not come to her until
11 o'clock sharp that morning.
The will in question was prepared by Attorney Marciano Almario between 11 and 12 o'clock noon on September
7, 1933, in the house of the testatrix Leoncia Tolentino, after she had expressed to said attorney her desire to
make a will and bequeath her property to the petitioner Victorio Payad in compensation according to her, for his
diligent and faithful services rendered to her. Victorio Payad had grown up under the care of the testatrix who had
been in her home from childhood. The will was written by Attorney Almario in his own handwriting, and was
written in Spanish because he had been instructed to do so by the testatrix. It was later read to her in the
presence of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona and other persons who were then present. The
testatrix approved all the contents of the document and requested Attorney Almario to write her name where she
had to sign by means of her thumbmark in view of the fact that her fingers no longer had the necessary strength
to hold a pen. She did after having taken the pen and tried to sign without anybody's help. Attorney Almario
proceeded to write the name of the testatrix on the three pages composing the will and the testatrix placed her
thumbmark on said writing with the help of said attorney, said help consisting in guiding her thumb in order to
place the mark between her name and surname, after she herself had moistened the tip of her thumb with which
she made such mark, on the ink pad which was brought to her for said purpose. Said attorney later signed the
three pages of the will in the presence of the testatrix and also of Pedro L. Cruz, and Jose Ferrer Cruz and
Perfecto L. Ona, who, in turn, forthwith signed it successively and exactly under the same circumstances above
stated.
In support of her claim that the testatrix did not place her thumbmark on the will on September 7, 1983, and that
she never made said will because she was no longer physically or mentally in a condition do so, the oppositor
cites the testimony of Julian Rodriguez, Gliceria Quisonia, Paz de Leon and her own.
Julian Rodriguez and Gliceria Quisonia testified that they had not seen Attorney Almario in the morning of
September 7, 1933, in the house of the deceased where they were then living, and that the first time that they saw
him there was at about 12 o'clock noon on September 8th of said year, when Leoncia Tolentino was already
dead, Gliceria Quisonia stating that on that occasion Almario arrived there accompanied only by woman named
Pacing. They did not state that Almario was accompanied by Pedro L. Cruz, Jose Ferrer Cruz and Perfecto L.
Ona, the instrumental witnesses of the will. Said two witnesses, however, could not but admit that their room was
situated at the other end of the rooms occupied by the deceased herself and by the petitioner Victorio Payad, and
that their said room and that of Victorio Payad are separated by the stairs of the house; that Gliceria Quisonia saw
the deceased only once on the 7th and twice on the 8th, and that Julian Rodriguez stayed in his room, without
leaving it, from 9 to 12 o'clock a. m. on the 7th of said month. Gliceria Quisonia further stated that in the morning
of September 7th, she prepared the noonday meal in the kitchen which was situated under the house. Under such
circumstances it is not strange that the two did not see the testatrix when, according to the evidence for the
petitioner, she made her will and signed it by means of her thumbmark. In order to be able to see her and also
Almario and the instrumental witnesses of the will, on that occasion, it was necessary for them to enter the room
where the deceased was, or at least the adjoining room where the will was prepared by Attorney Almario, but they
did not do so.
Gliceria Quisonia and Julian Rodriguez also testified that on the 7th the testatrix was already so weak that she
could not move and that she could hardly be understood because she could no longer enunciate, making it
understood thereby, that in such condition it was absolutely impossible for her to make any will. The attorney for
the oppositor insists likewise and more so because, according to him and his witness Paz de Leon, two days
before the death of the testatrix, or on September 6, 1933, she could not even open her eyes or make herself
understood.
The testimony of said witnesses is not sufficient to overthrow, or discredit the testimony of the petitioner-appellant
or that of Attorney Almario and the three instrumental witnesses of the will because, to corroborate them, we have
of record the testimony of the physician of the deceased and the accountant Ventura Loreto who are two
disinterested witnesses, inasmuch as the outcome of these proceedings does not affect them in the least. The
two testified that two, three or four days before the death of the testatrix, they visited her in her home, the former
professionally, and the latter as an acquaintance, and they then found her not so ill as to be unable to move or
hold a conversation. They stated that she spoke to them intelligently; that she answered all the questions which
they had put to her, and that she could still move in spite of her weakness.
In view of the foregoing facts and considerations, we deem it clear that the oppositor's motion for reconsideration
is unfounded.
The oppositor's motion for a new trial is based upon the following facts: (1) That upon her death, the deceased left
a letter signed by herself, placed in a stamped envelope and addressed to Teodoro R. Yangco, with instructions
not to open it until after her death; (2) that there are witnesses competent to testify on the letter in question, in
addition to other evidence discovered later, which could not be presented at the trial; (3) that in the letter left by
the deceased, she transfers all her property to Teodoro R. Yangco stating therein that, upon her death, all the
property in question should become Yangco's. From this alleged fact, the oppositor infers that the deceased never
had and could not have had the intention to make the will in question, and (4) that said oppositor knew of the
existence of said letter only after her former attorney, Alejandro Panis, had been informed thereof in May, 1935,
by one of Teodoro R. Yangco's attorneys named Jose Cortes.
Subsequent to the presentation of the motion for a new trial, the oppositor filed another supplementary motion
alleging that she had discovered some additional new evidence consisting in the affidavit of Attorney Gabino
Fernando Viola wherein the latter affirms that Victorio Payad had called him on September 5, 1933, to prepare the
will of the deceased but he did not do so because after seeing her he had been convinced that she could not
make a will because she had lost her speech and her eyes were already closed.
Mr. PANIS (attorney for the oppositor, addressing the court): Your Honor, I should like to present as the
last witness Attorney Fernando Viola who was called by the petitioner Victoria Payad to prepare the will
of the deceased in his favor on September 5, 1933.
COURT: But, Mr. Panis, are you going to testify for Attorney Fernando Viola? — Mr. PANIS: No, Your
Honor.
COURT: Well, where is that attorney? Where is that witness whom you wish to call to the witness
stand? — Mr. PANIS: Your Honor, he is busy in the branch, presided over by Judge Sison.

The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola, substantially affirming the facts alleged by
the oppositor, are attached to both motions for a new trial.
The affidavits of Attorneys Jose Cortes and Gabino Fernando Viola are not and cannot be newly discovered
evidence, and are not admissible to warrant the holding of a new trial, because the oppositor had been informed
of the facts affirmed by Attorney Jose Cortes in his affidavit long before this case was decided by this court. It is
stated in said affidavit that in May, 1935, Attorney Jose Cortes revealed to the attorney for oppositor the fact that
the deceased had left a letter whereby she transferred all her property to Teodoro R. Yangco, and the judgment
was rendered only on January 15, 1936, or eight months later.
The oppositor contends that she had no reason to inform the court of said newly discovered evidence inasmuch
as the judgment of the lower court was favorable to her. She, however, overlooks the fact that she also appealed
from the decision of the lower court and it was her duty, under the circumstances, to inform this court of the
discovery of said allegedly newly discovered evidence and to take advantage of the effects thereof because, by
so doing, she could better support her claim that the testatrix made no will, much less the will in question. Said
evidence, is not new and is not of the nature of that which gives rise to a new trial because, under the law, in
order that evidence may be considered newly discovered evidence and may serve as a ground for a new trial, it is
necessary (a) that it could not have been discovered in time, even by the exercise of due diligence; (b) that it be
material, and (c) that it also be of such a character as probably to change the result if admitted (section 497, Act
No. 190; Banal vs. Safont, 8 Phil., 276).
COURT: And when can he come? Mr. — PANIS. I am now going to find out, Your Honor. If the other
party, Your Honor, is willing to admit what said witness is going to testify in the sense that said Attorney
Fernando Viola went to the house of the deceased on September 5, 1933, for the purpose of talking to
the deceased to draft the will upon petition of Mr. Victorio Payad; if the other party admits that, then I am
going waive the presentation of the witness Mr. Fernando Viola.
Mr. ALMARIO (attorney for the petitioner): We cannot admit that.
COURT: The court had already assumed beforehand that the other party would not admit that
proposition.
Mr. PANIS: I request Your Honor to reserve us the right to call the witness, Mr. Viola, without prejudice
to the other party's calling the witness it may wish to call.
COURT: The court reserves to the oppositor its right to call Attorney Viola to the witness stand.
If, after all, the oppositor did not decide to call Attorney Viola to testify as a witness in her favor, it might have
been because she considered his testimony unimportant and unnecessary, and at the present stage of the
proceedings, it is already too late to claim that what said attorney may now testify is a newly discovered evidence.

The affidavit of Attorney Cortes is neither material nor important in the sense that, even considering it newly
discovered evidence, it will be sufficient to support the decision of the lower court and modify that of this court. It
is simply hearsay or, at most, corroborative evidence. The letter of the deceased Leoncia Tolentino to Teodoro R.
Yangco would, in the eyes of the law, be considered important or material evidence but this court has not the
letter in question before it, and no attempt was ever made to present a copy thereof.
For the foregoing considerations, those stated by this court in the original decision, and the additional reason that,
as held in the case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new trial on the ground of newly
discovered evidence is limited to ordinary cases pending in this court on bills of exceptions, the motion for
reconsideration and a new trial filed by the oppositor are hereby denied, ordering that the record be remanded
immediately to the lower court. So ordered.

The affidavit of Attorney Gabino Fernando Viola or testimony he may give pursuant thereto is not more competent
than that of Attorney Jose Cortes because, granting that when he was called by Victorio Payad to help the
deceased Leoncia Tolentino to make her will and he went to her house on September 5, 1933, the deceased was
almost unconscious, was unintelligible and could not speak, it does not necessarily mean that on the day she
made her will, September 7, 1933, she had not recovered consciousness and all her mental faculties to
capacitate her to dispose of all her property. What Attorney Gabino Fernando Viola may testify pursuant to his
affidavit in question is not and can not be newly discovered evidence of the character provided for by law, not only
because it does not exclude the possibility that testatrix had somewhat improved in health, which possibility
became a reality at the time she made her will because she was then in the full enjoyment of her mental faculties,
according to the testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona, Victorio Payad and Marciano
Almario, but also because during the hearing of these proceedings in the Court of First Instance, Attorney Viola
was present, and the oppositor then could have very well called him to the witness stand, inasmuch as her
attorney already knew what Attorney Viola was to testify about, yet she did not call him. The last fact is shown by
the following excerpt from pages 148 to 150 of the transcript:
G.R. No. 1641 January 19, 1906 signed as a witness in the presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the
GERMAN JABONETA, plaintiff-appellant, room. As he was leaving the house Julio Javellana took the pen in his hand and put himself in position
to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but nevertheless, after
vs.
RICARDO GUSTILO, ET AL., defendants-appellees. Jena had left the room the said Julio Javellana signed as a witness in the presence of the testator and of
the witness Aniceto Jalbuena.

Ledesma, Sumulong and Quintos for appellant.

We can not agree with so much of the above finding of facts as holds that the signature of Javellana was not
Del-Pan, Ortigas and Fisher for appellees.
signed in the presence of Jena, in compliance with the provisions of section 618 of the Code of Civil Procedure.
The fact that Jena was still in the room when he saw Javellana moving his hand and pen in the act of affixing his
CARSON, J.: signature to the will, taken together with the testimony of the remaining witnesses which shows that Javellana did
in fact there and then sign his name to the will, convinces us that the signature was affixed in the presence of
In these proceedings probate was denied the last will and testament of Macario Jaboneta, deceased, because the Jena. The fact that he was in the act of leaving, and that his back was turned while a portion of the name of the
lower court was of the opinion from the evidence adduced at the hearing that Julio Javellana, one of the witness was being written, is of no importance. He, with the other witnesses and the testator, had assembled for
witnesses, did not attach his signature thereto in the presence of Isabelo Jena, another of the witnesses, as the purpose of executing the testament, and were together in the same room for that purpose, and at the moment
required by the provisions of section 618 of the Code of Civil Procedure. when the witness Javellana signed the document he was actually and physically present and in such position with
relation to Javellana that he could see everything which took place by merely casting his eyes in the proper
direction, and without any physical obstruction to prevent his doing so, therefore we are of opinion that the
The following is a copy of the evidence which appears of record on this particular point, being a part of the document was in fact signed before he finally left the room.
testimony of the said Isabeo Jena:
The purpose of a statutory requirement that the witness sign in the presence of the testator is said to be
Q. 1641 Who first signed the will? that the testator may have ocular evidence of the identity of the instrument subscribed by the witness
A. 1641 I signed it first, and afterwards Aniceto and the others. and himself, and the generally accepted tests of presence are vision and mental apprehension. (See
Q. 1641 Who were those others to whom you have just referred? Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
A. 1641 After the witness Aniceto signed the will I left the house, because I was in a hurry, and at
the moment when I was leaving I saw Julio Javellana with the pen in his hand in position ready to sign
(en actitud de firmar). I believe he signed, because he was at the table. . . . In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are together for the
Q. 1641 State positively whether Julio Javellana did or did not sign as a witness to the will. purpose of witnessing the execution of the will, and in a position to actually see the testator write, if they choose to
A. 1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana with the do so; and there are many cases which lay down the rule that the true test of vision is not whether the testator
pen in his hand, in position ready to sign. I believe he signed. actually saw the witness sign, but whether he might have seen him sign, considering his mental and physical
Q. 1641 Why do you believe Julio Javellana signed? condition and position at the time of the subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
A. 1641 Because he had the pen in his hand, which was resting on the paper, though I did not
actually see him sign. The principles on which these cases rest and the tests of presence as between the testator and the witnesses are
Q. 1641 Explain this contradictory statement. equally applicable in determining whether the witnesses signed the instrument in the presence of each other, as
A. 1641 After I signed I asked permission to leave, because I was in a hurry, and while I was required by the statute, and applying them to the facts proven in these proceedings we are of opinion that the
leaving Julio had already taken the pen in his hand, as it appeared, for the purpose of signing, and when statutory requisites as to the execution of the instrument were complied with, and that the lower court erred in
I was near the door I happened to turn my face and I saw that he had his hand with the pen resting on denying probate to the will on the ground stated in the ruling appealed from.
the will, moving it as if for the purpose of signing.
Q. 1641 State positively whether Julio moved his hand with the pen as if for the purpose of
signing, or whether he was signing We are of opinion from the evidence of record that the instrument propounded in these proceedings was
A. I believe he was signing. satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it should therefore
be admitted to probate.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by any of the
parties to the proceedings, but the court, nevertheless, found the following facts: The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty days the
record will be returned to the court form whence it came, where the proper orders will be entered in conformance
herewith. So ordered.
On the 26th day of December, 1901, Macario Jaboneta executed under the following circumstances the
document in question, which has been presented for probate as his will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the document in
question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo Jena as witnesses,
executed the said document as his will. They were all together, and were in the room where Jaboneta
was, and were present when he signed the document, Isabelo Jena signing afterwards as a witness, at
his request, and in his presence and in the presence of the other two witnesses. Aniceto Jalbuena then
G.R. No. L-5971 February 27, 1911 The true test of presence of the testator and the witnesses in the execution of a will
is not whether they actually saw each other sign, but whether they might have been
BEATRIZ NERA, ET AL., plaintiffs-appellees, seen each other sign, had they chosen to do so, considering their mental and
vs. physical condition and position with relation to each other at the moment of
NARCISA RIMANDO, defendant-appellant. inscription of each signature.

Valerio Fontanilla and Andres Asprer for appellant. But it is especially to be noted that the position of the parties with relation to each other at
Anacleto Diaz for appellees. the moment of the subscription of each signature, must be such that they may see each
other sign if they choose to do so. This, of course, does not mean that the testator and the
CARSON, J.: subscribing witnesses may be held to have executed the instrument in the presence of each
other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in the
The only question raised by the evidence in this case as to the due execution of the
case relied upon by the trial judge discloses that "at the moment when the witness Javellana
instrument propounded as a will in the court below, is whether one of the subscribing
signed the document he was actually and physically present and in such position with
witnesses was present in the small room where it was executed at the time when the
relation to Jaboneta that he could see everything that took place by merely casting his eyes
testator and the other subscribing witnesses attached their signatures; or whether at that
in the proper direction and without any physical obstruction to prevent his doing so." And the
time he was outside, some eight or ten feet away, in a large room connecting with the
decision merely laid down the doctrine that the question whether the testator and the
smaller room by a doorway, across which was hung a curtain which made it impossible for
subscribing witnesses to an alleged will sign the instrument in the presence of each other
one in the outside room to see the testator and the other subscribing witnesses in the act of
does not depend upon proof of the fact that their eyes were actually cast upon the paper at
attaching their signatures to the instrument.
the moment of its subscription by each of them, but that at that moment existing conditions
and their position with relation to each other were such that by merely casting the eyes in
A majority of the members of the court is of opinion that this subscribing witness was in the the proper direction they could have seen each other sign. To extend the doctrine further
small room with the testator and the other subscribing witnesses at the time when they would open the door to the possibility of all manner of fraud, substitution, and the like, and
attached their signatures to the instrument, and this finding, of course, disposes of the would defeat the purpose for which this particular condition is prescribed in the code as one
appeal and necessitates the affirmance of the decree admitting the document to probate as of the requisites in the execution of a will.
the last will and testament of the deceased.
The decree entered by the court below admitting the instrument propounded therein to
The trial judge does not appear to have considered the determination of this question of fact probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
of vital importance in the determination of this case, as he was of opinion that under the this instance against the appellant.
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact
that one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would not
be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence" of the witness in the outer
room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:
G.R. No. L-18979 June 30, 1964
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.
CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the document and its
duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa Villacorte,
deceased, and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and admission to
probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased, and for the
appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on November
10, 1958, she petitioned to have herself appointed as a special administrator, to which proponent objected.
Hence, on November 18, 1958, the court issued an order appointing the Philippine Trust Company as
special administrator. 1äwphï1.ñët
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as his
own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on June 1,
1959, he filed a motion for the admission of an amended and supplemental petition, alleging that the
decedent left a will executed in duplicate with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May 26, 1959. On
June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition to
the admission of the amended and supplemental petition, but by order of July 20, 1959, the court admitted
said petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended opposition. Thereafter,
the parties presented their respective evidence, and after several hearings the court issued the order
admitting the will and its duplicate to probate. From this order, the oppositors appealed directly to this
Court, the amount involved being over P200,000.00, on the ground that the same is contrary to law and the
evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of Manila on
September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will and testament in
duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published
before and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V.
Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by the testatrix and by the said three
instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the
City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament, together with former Governor
Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to
the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said
will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting
witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also
testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will
and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to
Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which was surrendered simultaneously with the filing of the
petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it
does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit
"A-1" is signed by the testatrix and her three attesting witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and its
duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix
herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that
of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the
original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause
thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation
clause is in a language also known to and spoken by the witnesses; that the will was executed on one
single occasion in duplicate copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have
lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his
presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in
the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the
original, and further aver that granting that the documents were genuine, they were executed through
mistake and with undue influence and pressure because the testatrix was deceived into adopting as her
last will and testament the wishes of those who will stand to benefit from the provisions of the will, as may
be inferred from the facts and circumstances surrounding the execution of the will and the provisions and
dispositions thereof, whereby proponents-appellees stand to profit from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while oppositors-appellants are
enjoined not to look for other properties not mentioned in the will, and not to oppose the probate of it, on
penalty of forfeiting their share in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both original
and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the same in the
presence of the three attesting witnesses, the notary public who acknowledged the will; and Atty. Samson,
who actually prepared the documents; that the will and its duplicate were executed in Tagalog, a language
known to and spoken by both the testator and the witnesses, and read to and by the testatrix and Atty.
Fermin Samson, together before they were actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The opinion of expert for oppositors, Mr. Felipe
Logan, that the signatures of the testatrix appearing in the duplicate original were not written by the same
had which wrote the signatures in the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of the paucity of the
standards used by him to support the conclusion that the differences between the standard and questioned
signatures are beyond the writer's range of normal scriptural variation. The expert has, in fact, used as
standards only three other signatures of the testatrix besides those affixed to the original of the testament
(Exh. A); and we feel that with so few standards the expert's opinion and the signatures in the duplicate
could not be those of the testatrix becomes extremely hazardous. This is particularly so since the
comparison charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify
the charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These, factors
were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures does
not appear reliable, considering the standard and challenged writings were affixed to different kinds of
paper, with different surfaces and reflecting power. On the whole, therefore, we do not find the testimony of
the oppositor's expert sufficient to overcome that of the notary and the two instrumental witnesses, Torres
and Natividad (Dr. Diy being in the United States during the trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more favored
than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163; Pecson vs.
Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a testament; otherwise,
the decedent might as well die intestate. The testamentary dispositions that the heirs should not inquire into
other property and that they should respect the distribution made in the will, under penalty of forfeiture of
their shares in the free part do not suffice to prove fraud or undue influence. They appear motivated by the
desire to prevent prolonged litigation which, as shown by ordinary experience, often results in a sizeable
portion of the estate being diverted into the hands of non-heirs and speculators. Whether these clauses are
valid or not is a matter to be litigated on another occassion. It is also well to note that, as remarked by the
Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant
and exclude each other; their joining as grounds for opposing probate shows absence of definite evidence
against the validity of the will.
every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the statutory
requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the
law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that
despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page
either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents
exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud
and bid faith but without undue or unnecessary curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the duplicate (Exh.
A-1) is not entitled to probate. Since they opposed probate of original because it lacked one signature in its
third page, it is easily discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon duplicate (Exh. A-1), and
the same is probatable. If the original is valid and can be probated, then the objection to the signed
duplicate need not be considered, being superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1,
serves to prove that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of the petition for
probate. The amended petition did not substantially alter the one first filed, but merely supplemented it by
disclosing the existence of the duplicate, and no showing is made that new interests were involved (the
contents of Exhibit A and A-1 are admittedly identical); and appellants were duly notified of the proposed
amendment. It is nowhere proved or claimed that the amendment deprived the appellants of any substantial
right, and we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against appellants.

On the question of law, we hold that the inadvertent failure of one witness to affix his signature to one page
of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient
to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint
of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses.
The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to
guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or
deliberate deviation existed, and the evidence on record attests to the full observance of the statutory
requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause".

That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by
his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in