ART 799 Also assailed herein is the August 31, 2006

CA Resolution[6] which denied the Motion for

Reconsideration thereto.
ANTONIO B. G.R. No. 174489
BALTAZAR, Petitioners call us to reverse the CAs
SEBASTIAN M. assailed Decision and instead affirm the Decision
BALTAZAR, of the RTC which disallowed the notarial will of
ANTONIO L. Paciencia.
MANGALINDAN,
ROSIE M. MATEO, Present: Factual Antecedents
NENITA A.
PACHECO, Paciencia was a 78 year old spinster when she
VIRGILIO REGALA, CORONA, C.J., made her last will and testament entitled Tauli
JR., Chairperson, Nang Bilin o Testamento Miss Paciencia
and RAFAEL LEONARDO-DE Regala[7] (Will) in the Pampango dialect on
TITCO, CASTRO, September 13, 1981. The Will, executed in the
Petitioners, BERSAMIN, house of retired Judge Ernestino G. Limpin (Judge
DEL CASTILLO, and Limpin), was read to Paciencia twice. After which,
Paciencia expressed in the presence of the
- versus - VILLARAMA, JR., JJ.
instrumental witnesses that the document is her
last will and testament. She thereafter affixed her
LORENZO LAXA, Promulgated: signature at the end of the said document on page
Respondent. April 11, 2012 3[8] and then on the left margin of pages 1, 2 and 4
x------------------------------------- thereof.[9]
------------------------------x
The witnesses to the Will were Dra. Maria
DECISION Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado
DEL CASTILLO, J.: (Faustino). The three attested to the Wills due
execution by affixing their signatures below its
It is incumbent upon those who oppose the attestation clause[10] and on the left margin of
probate of a will to clearly establish that the pages 1, 2 and 4 thereof,[11] in the presence of
decedent was not of sound and disposing mind at Paciencia and of one another and of Judge Limpin
the time of the execution of said will. Otherwise, the who acted as notary public.
state is duty-bound to give full effect to the wishes Childless and without any brothers or sisters,
of the testator to distribute his estate in the manner Paciencia bequeathed all her properties to
provided in his will so long as it is legally tenable.[1] respondent Lorenzo R. Laxa (Lorenzo) and his
wife Corazon F. Laxa and their children Luna
Before us is a Petition for Review Lorella Laxa and Katherine Ross Laxa, thus:
on Certiorari[2] of the June 15, 2006 Decision[3] of
the Court of Appeals (CA) in CA-G.R. CV No. xxxx
80979 which reversed the September 30, 2003
Decision[4] of the Regional Trial Court (RTC), Fourth - In consideration of
Branch 52, Guagua, Pampanga in Special their valuable services to me since
Proceedings No. G-1186. The assailed CA then up to the present by the
Decision granted the petition for probate of the spouses LORENZO LAXA and
notarial will of Paciencia Regala (Paciencia), to wit: CORAZON F. LAXA, I hereby
WHEREFORE, premises BEQUEATH, CONVEY and GIVE
considered, finding the appeal to be all my properties enumerated in
impressed with merit, the decision in parcels 1 to 5 unto the spouses
SP. PROC. NO. G-1186 dated 30 LORENZO R. LAXA and
September 2003, is hereby SET CORAZON F. LAXA and their
ASIDE and a new one entered children, LUNA LORELLA LAXA
GRANTING the petition for the and KATHERINE LAXA, and the
probate of the will of PACIENCIA spouses Lorenzo R. Laxa and
REGALA. Corazon F. Laxa both of legal age,
Filipinos, presently residing at Barrio
SO ORDERED.[5] Sta. Monica, [Sasmuan], Pampanga
and their children, LUNA LORELLA
and KATHERINE ROSS LAXA,
1

who are still not of legal age and

Page
 living with their parents who would
decide to bequeath since they are
the children of the spouses;
xxxx
[Sixth] - Should other
properties of mine may be
discovered aside from the properties
mentioned in this last will and
testament, I am also bequeathing
and giving the same to the spouses
Lorenzo R. Laxa and Corazon F.
Laxa and their two children and I
also command them to offer
masses yearly for the repose of my
soul and that of D[]a Nicomeda
Regala, Epifania Regala and their
spouses and with respect to the
fishpond situated at San Antonio, I
likewise command to fulfill the
wishes of D[]a Nicomeda Regala in
accordance with her testament as
stated in my testament. x x x[12]
The filial relationship of Lorenzo with
Paciencia remains undisputed. Lorenzo is
Paciencias nephew whom she treated as her own
son. Conversely, Lorenzo came to know and
treated Paciencia as his own mother.[13] Paciencia
lived with Lorenzos family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo
since his birth. Six days after the execution of the
Will or on September 19, 1981, Paciencia left for
the United States of America (USA). There, she
resided with Lorenzo and his family until her death
on January 4, 1996.
In the interim, the Will remained in the
custody of Judge Limpin.
More than four years after the death of
Paciencia or on April 27, 2000, Lorenzo filed a
petition[14] with the RTC of Guagua, Pampanga for
the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favor,
docketed as Special Proceedings No. G-1186.
There being no opposition to the petition
after its due publication, the RTC issued an Order
on June 13, 2000[15] allowing Lorenzo to present
evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the
instrumental witnesses in the execution of the last
will and testament of Paciencia on September 13,
1981.[16] The Will was executed in her fathers
(Judge Limpin) home office, in her presence and of
two other witnesses, Francisco and
Faustino.[17] Dra. Limpin positively identified the Will
and her signatures on all its four pages.[18] She
likewise positively identified the signature of her
father appearing thereon.[19] Questioned by the
prosecutor regarding Judge Limpins present
mental fitness, Dra. Limpin testified that her father
had a stroke in 1991 and had to undergo brain
surgery.[20] The judge can walk but can no longer
talk and remember her name. Because of this,
Dra. Limpin stated that her father can no longer
testify in court.[21]
The following day or on June 23, 2000,
petitioner Antonio Baltazar (Antonio) filed an
opposition[22] to Lorenzos petition. Antonio averred
that the properties subject of Paciencias Will
belong to Nicomeda Regala Mangalindan, his
predecessor-in-interest; hence, Paciencia had no
right to bequeath them to Lorenzo.[23]
Barely a month after or on July 20, 2000,
Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco,
Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a
Supplemental Opposition[24] contending that
Paciencias Will was null and void because
ownership of the properties had not been
transferred and/or titled to Paciencia before her
death pursuant to Article 1049, paragraph 3 of the
Civil Code.[25] Petitioners also opposed the
issuance of Letters of Administration in Lorenzos
favor arguing that Lorenzo was disqualified to be
appointed as such, he being a citizen and resident
of the USA.[26] Petitioners prayed that Letters of
Administration be instead issued in favor of
Antonio.[27]
Later still on September 26, 2000,
petitioners filed an Amended Opposition[28] asking
the RTC to deny the probate of Paciencias Will on
the following grounds: the Will was not executed
and attested to in accordance with the
requirements of the law; that Paciencia was
mentally incapable to make a Will at the time of its
execution; that she was forced to execute the Will
under duress or influence of fear or threats; that the
execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo
or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that
assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that
Paciencia did not intend the document to be her
Will. Simultaneously, petitioners filed an Opposition
and Recommendation[29] reiterating their opposition
to the appointment of Lorenzo as administrator of
the properties and requesting for the appointment
of Antonio in his stead.
On January 29, 2001, the RTC issued an
Order[30] denying the requests of both Lorenzo and
2
Antonio to be appointed administrator since the
Page
former is a citizen and resident of the USAwhile the
latters claim as a co-owner of the properties
subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for
the probate of the Will continued. Dra. Limpin was
recalled for cross-examination by the
petitioners. She testified as to the age of her father
at the time the latter notarized the Will of
Paciencia; the living arrangements of Paciencia at
the time of the execution of the Will; and the lack of
photographs when the event took place. [31]
Aside from Dra. Limpin, Lorenzo
and Monico Mercado (Monico) also took the
witness stand. Monico, son of Faustino, testified on
his fathers condition. According to him his father
can no longer talk and express himself due to brain
damage. A medical certificate was presented to
the court to support this allegation. [32]
For his part, Lorenzo testified that: from
1944 until his departure for the USA in April 1980,
he lived in Sasmuan, Pampanga with his family
and his aunt, Paciencia; in 1981 Paciencia went to
the USA and lived with him and his family until her
death in January 1996; the relationship between
him and Paciencia was like that of a mother and
child since Paciencia took care of him since birth
and took him in as an adopted son; Paciencia was
a spinster without children, and without brothers
and sisters; at the time of Paciencias death, she
did not suffer from any mental disorder and was of
sound mind, was not blind, deaf or mute; the Will
was in the custody of Judge Limpin and was only
given to him after Paciencias death through
Faustino; and he was already residing in the USA
when the Will was executed.[33] Lorenzo positively
identified the signature of Paciencia in three
different documents and in the Will itself and stated
that he was familiar with Paciencias signature
because he accompanied her in her
transactions.[34] Further, Lorenzo belied and denied
having used force, intimidation, violence, coercion
or trickery upon Paciencia to execute the Will as he
was not in the Philippines when the same was
executed.[35] On cross-examination, Lorenzo
clarified that Paciencia informed him about the Will
shortly after her arrival in the USA but that he saw
a copy of the Will only after her death.[36]
As to Francisco, he could no longer be
presented in court as he already died on May 21,
2000.
For petitioners, Rosie testified that her
mother and Paciencia were first cousins.[37] She
claimed to have helped in the household chores in
the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during
the period of her service in the said household,
Lorenzos wife and his children were staying in the
same house.[38] She served in the said household
from 1980 until Paciencias departure for
the USA on September 19, 1981.[39]
On September 13, 1981, Rosie claimed
that she saw Faustino bring something for
Paciencia to sign at the latters house.[40] Rosie
admitted, though, that she did not see what that
something was as same was placed inside an
envelope.[41] However, she remembered Paciencia
instructing Faustino to first look for money before
she signs them.[42] A few days after or on
September 16, 1981, Paciencia went to the house
of Antonios mother and brought with her the said
envelope.[43] Upon going home, however, the
envelope was no longer with Paciencia.[44]Rosie
further testified that Paciencia was referred to
as magulyan or forgetful because she would
sometimes leave her wallet in the kitchen then start
looking for it moments later.[45] On cross
examination, it was established that Rosie was
neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was magulyan was
based on her personal assessment,[46] and that it
was Antonio who requested her to testify in
court.[47]
In his direct examination, Antonio stated
that Paciencia was his aunt.[48] He identified the
Will and testified that he had seen the said
document before because Paciencia brought the
same to his mothers house and showed it to him
along with another document on September 16,
1981.[49] Antonio alleged that when the documents
were shown to him, the same were still
unsigned.[50] According to him, Paciencia thought
that the documents pertained to a lease of one of
her rice lands,[51] and it was he who explained that
the documents were actually a special power of
attorney to lease and sell her fishpond and other
properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo
and his family upon her death.[52] Upon hearing
this, Paciencia allegedly uttered the following
words: Why will I never [return], why will I sell all
my properties? Who is Lorenzo? Is he the only
[son] of God? I have other relatives [who should]
benefit from my properties. Why should I die
already?[53] Thereafter, Antonio advised Paciencia
not to sign the documents if she does not want to,
to which the latter purportedly replied, I know
nothing about those, throw them away or it is up to
you. The more I will not sign them.[54] After which,
Paciencia left the documents with Antonio. Antonio
kept the unsigned documents
and eventually turned them over to Faustino on
September 18, 1981.[55]
Ruling of the Regional Trial Court
3
Page
 On September 30, 2003, the RTC rendered ACCORDANCE WITH THE
its Decision[56] denying the petition thus: EVIDENCE ON RECORD;

WHEREFORE, this court III.

hereby (a) denies the petition dated THE HONORABLE COURT OF
April 24, 2000; and (b) disallows the APPEALS GRAVELY ERRED IN
notarized will dated September 13, RULING THAT PETITIONERS
1981 of Paciencia Regala. FAILED TO PROVE THAT
PACIENCIA WAS NOT OF
SO ORDERED.[57] SOUND MIND AT THE TIME THE
WILL WAS ALLEGEDLY
[63]
EXECUTED
The trial court gave considerable weight to
the testimony of Rosie and concluded that at the
time Paciencia signed the Will, she was no longer The pivotal issue is whether the authenticity and
possessed of sufficient reason or strength of mind due execution of the notarial Will was sufficiently
to have testamentary capacity.[58] established to warrant its allowance for probate.

Ruling of the Court of Appeals Our Ruling

On appeal, the CA reversed the RTC We deny the petition.

Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with
the RTCs conclusion that Paciencia was of
unsound mind when she executed the Will. It
ratiocinated that the state of being magulyan does
not make a person mentally unsound so [as] to
render [Paciencia] unfit for executing a
Will.[59]Moreover, the oppositors in the probate
proceedings were not able to overcome the
presumption that every person is of sound
mind. Further, no concrete circumstances or
events were given to prove the allegation that
Paciencia was tricked or forced into signing the
Will.[60]
Petitioners moved for reconsideration[61] but
the motion was denied by the CA in its
Resolution[62] dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way
of Petition for Review on Certiorari ascribing upon
the CA the following errors:
I.
THE HONORABLE COURT OF
APPEALS SERIOUSLY ERRED
WHEN IT ALLOWED THE
PROBATE OF PACIENCIAS WILL
DESPITE RESPONDENTS UTTER
FAILURE TO COMPLY WITH
SECTION 11, RULE 76 OF THE
RULES OF COURT;
Faithful compliance with the formalities
laid down by law is apparent from the face of
the Will.
Courts are tasked to determine nothing
more than the extrinsic validity of a
Will in probate proceedings.[64] This is expressly
provided for in Rule 75, Section 1 of the Rules of
Court, which states:
Rule 75
PRODUCTION OF WILL.
ALLOWANCE OF WILL
NECESSARY.
Section 1. Allowance
necessary. Conclusive as to
execution. No will shall pass
either real or personal estate
unless it is proved and
allowed in the proper court.
Subject to the right of appeal,
such allowance of the will
shall be conclusive as to its
due execution.
Due execution of the will or its extrinsic
validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance
with the formalities prescribed by law.[65]These
formalities are enshrined in Articles 805 and 806 of
the New Civil Code, to wit:

II. Art. 805. Every will, other

THE HONORABLE COURT OF than a holographic will, must be
APPEALS GRAVELY ERRED IN subscribed at the end thereof by the
4

MAKING CONCLUSIONS NOT IN testator himself or by the testator's

Page
 name written by some other person
in his presence, and by his express
direction, and attested and
subscribed by three or more
credible witnesses in the presence
of the testator and of one another.
The testator or the person
requested by him to write his name
and the instrumental witnesses of
the will, shall also sign, as aforesaid,
each and every page thereof,
except the last, on the left margin,
and all the pages shall be numbered
correlatively in letters placed on the
upper part of each page.
The attestation shall state
the number of pages used upon
which the will is written, and the fact
that the testator signed the will and
every page thereof, or caused some
other person to write his name,
under his express direction, in the
presence of the instrumental
witnesses, and that the latter
witnessed and signed the will and all
the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in
a language not known to the
witnesses, it shall be interpreted to
them.
Art. 806. Every will must be
acknowledged before a notary
public by the testator and the
witnesses. The notary public shall
not be required to retain a copy of
the will, or file another with the Office
of the Clerk of Court.
Here, a careful examination of the face of
the Will shows faithful compliance with the
formalities laid down by law. The signatures of the
testatrix, Paciencia, her instrumental witnesses and
the notary public, are all present and evident on the
Will. Further, the attestation clause explicitly states
the critical requirement that the testatrix and her
instrumental witnesses signed the Will in the
presence of one another and that the witnesses
attested and subscribed to the Will in the presence
of the testator and of one another. In fact, even the
petitioners acceded that the signature of Paciencia
in the Will may be authentic although they question
her state of mind when she signed the same as
well as the voluntary nature of said act.
The burden to prove that Paciencia was of
unsound mind at the time of the execution of
the will lies on the shoulders of the petitioners.
Petitioners, through their witness Rosie,
claim that Paciencia was magulyan or forgetful so
much so that it effectively stripped her of
testamentary capacity. They likewise claimed in
their Motion for Reconsideration[66] filed with the CA
that Paciencia was not only magulyan but was
actually suffering from paranoia.[67]
We are not convinced.
We agree with the position of the CA that
the state of being forgetful does not necessarily
make a person mentally unsound so as to render
him unfit to execute a Will.[68] Forgetfulness is not
equivalent to being of unsound mind. Besides,
Article 799 of the New Civil Code states:
Art. 799. To be of sound
mind, it is not necessary that the
testator be in full possession of all
his reasoning faculties, or that his
mind be wholly unbroken,
unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the
testator was able at the time of
making the will to know the nature of
the estate to be disposed of, the
proper objects of his bounty, and the
character of the testamentary act.
In this case, apart from the testimony of
Rosie pertaining to Paciencias forgetfulness, there
is no substantial evidence, medical or otherwise,
that would show that Paciencia was of unsound
mind at the time of the execution of the Will. On the
other hand, we find more worthy of credence Dra.
Limpins testimony as to the soundness of mind of
Paciencia when the latter went to Judge Limpins
house and voluntarily executed the Will. The
testimony of subscribing witnesses to a Will
concerning the testators mental condition is entitled
to great weight where they are truthful and
intelligent.[69] More importantly, a testator is
presumed to be of sound mind at the time of the
execution of the Will and the burden to prove
otherwise lies on the oppositor. Article 800 of the
New Civil Code states:
Art. 800. The law presumes
that every person is of sound mind,
in the absence of proof to the
contrary.
The burden of proof that the
testator was not of sound mind at
5
the time of making his dispositions is
Page
 on the person who opposes the
probate of the will; but if the testator,
one month, or less, before making
his will was publicly known to be
insane, the person who maintains
the validity of the will must prove
that the testator made it during a
lucid interval.
Here, there was no showing that Paciencia
was publicly known to be insane one month or less
before the making of the Will. Clearly, thus, the
burden to prove that Paciencia was of unsound
mind lies upon the shoulders of
petitioners. However and as earlier mentioned, no
substantial evidence was presented by them to
prove the same, thereby warranting the CAs
finding that petitioners failed to discharge such
burden.
Furthermore, we are convinced that Paciencia was
aware of the nature of her estate to be disposed of,
the proper objects of her bounty and the character
of the testamentary act. As aptly pointed out by the
CA:
A scrutiny of the Will
discloses that [Paciencia] was
aware of the nature of the document
she executed. She specially
requested that the customs of her
faith be observed upon her death.
She was well aware of how she
acquired the properties from her
parents and the properties she is
bequeathing to LORENZO, to his
wife CORAZON and to his two (2)
children. A third child was born after
the execution of the will and was not
included therein as devisee.[70]
Bare allegations of duress or influence of fear
or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.
An essential element of the validity of the
Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her
earthly possessions upon his/her death.Petitioners
claim that Paciencia was forced to execute the Will
under duress or influence of fear or threats; that the
execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo
or by some other persons for his benefit; and that
assuming Paciencias signature to be genuine, it
was obtained through fraud or trickery. These are
grounded on the alleged conversation between
Paciencia and Antonio on September 16, 1981
wherein the former purportedly repudiated the Will
and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted
fact that Paciencia loved and treated Lorenzo as
her own son and that love even extended to
Lorenzos wife and children. This kind of
relationship is not unusual. It is in fact not unheard
of in our culture for old maids or spinsters to care
for and raise their nephews and nieces and treat
them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in
many family discords between those favored by
the testamentary disposition of a testator and those
who stand to benefit in case of intestacy.
In this case, evidence shows the
acknowledged fact that Paciencias relationship
with Lorenzo and his family is different from her
relationship with petitioners. The very fact that she
cared for and raised Lorenzo and lived with him
both here and abroad, even if the latter was
already married and already has children,
highlights the special bond between them. This
unquestioned relationship between Paciencia and
the devisees tends to support the authenticity of
the said document as against petitioners
allegations of duress, influence of fear or threats,
undue and improper influence, pressure, fraud,
and trickery which, aside from being factual in
nature, are not supported by concrete, substantial
and credible evidence on record. It is worth
stressing that bare arguments, no matter how
forceful, if not based on concrete and substantial
evidence cannot suffice to move the Court to
uphold said allegations.[71] Furthermore, a
purported will is not [to be] denied legalization on
dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its
foundation, for even if a will has been duly
executed in fact, whether x x x it will be probated
would have to depend largely on the attitude of
those interested in [the estate of the deceased].[72]
Court should be convinced by the evidence
presented before it that the Will was duly
executed.
Petitioners dispute the authenticity of
Paciencias Will on the ground that Section 11 of
Rule 76 of the Rules of Court was not complied
with. It provides:
RULE 76
ALLOWANCE OR
DISALLOWANCE OF WILL
Section 11. Subscribing
6
witnesses produced or accounted
Page
 for where will contested. If the will is
contested, all the subscribing
witnesses, and the notary in the
case of wills executed under the
Civil Code of the Philippines, if
present in the Philippines and not
insane, must be produced and
examined, and the death, absence,
or insanity of any of them must be
satisfactorily shown to the court. If all
or some of such witnesses are
present in the Philippines but
outside the province where the will
has been filed, their deposition must
be taken. If any or all of them testify
against the due execution of the will,
or do not remember having attested
to it, or are otherwise of doubtful
credibility, the will may nevertheless,
be allowed if the court is satisfied
from the testimony of other
witnesses and from all the evidence
presented that the will was executed
and attested in the manner required
by law.
If a holographic will is
contested, the same shall be
allowed if at least three (3)
witnesses who know the
handwriting of the testator explicitly
declare that the will and the
signature are in the handwriting of
the testator; in the absence of any
competent witnesses, and if the
court deem it necessary, expert
testimony may be resorted to.
(Emphasis supplied.)
They insist that all subscribing witnesses
and the notary public should have been presented
in court since all but one witness, Francisco, are
still living.
We cannot agree with petitioners.
We note that the inability of Faustino and
Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate
proceedings. As testified to by his son, Faustino
had a heart attack, was already bedridden and
could no longer talk and express himself due to
brain damage. To prove this, said witness
presented the corresponding medical
certificate. For her part, Dra. Limpin testified that
her father, Judge Limpin, suffered a stroke in 1991
and had to undergo brain surgery. At that time,
Judge Limpin could no longer talk and could not
even remember his daughters name so that Dra.
Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that
point, despite ample opportunity, petitioners neither
interposed any objections to the testimonies of said
witnesses nor challenged the same on cross
examination. We thus hold that for all intents and
purposes, Lorenzo was able to satisfactorily
account for the incapacity and failure of the said
subscribing witness and of the notary public to
testify in court. Because of this the probate of
Paciencias Will may be allowed on the basis of
Dra. Limpins testimony proving her sanity and the
due execution of the Will, as well as on the proof of
her handwriting. It is an established rule that [a]
testament may not be disallowed just because the
attesting witnesses declare against its due
execution; neither does it have to be necessarily
allowed just because all the attesting witnesses
declare in favor of its legalization; what is decisive
is that the court is convinced by evidence before it,
not necessarily from the attesting witnesses,
although they must testify, that the will was or was
not duly executed in the manner required by law.[73]
Moreover, it bears stressing that
[i]rrespective x x x of the posture of any of the
parties as regards the authenticity and due
execution of the will x x x in question, it is the
mandate of the law that it is the evidence before
the court and/or [evidence that] ought to be before
it that is controlling.[74] The very existence of [the
Will] is in itself prima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed
in the manner therein provided, and it is incumbent
upon the state that, if legally tenable, such desire
be given full effect independent of the attitude of
the parties affected thereby.[75] This, coupled with
Lorenzos established relationship with Paciencia,
the evidence and the testimonies of disinterested
witnesses, as opposed to the total lack of evidence
presented by petitioners apart from their self-
serving testimonies, constrain us to tilt the balance
in favor of the authenticity of the Will and its
allowance for probate.
WHEREFORE, the petition
is DENIED. The Decision dated June 15, 2006 and
the Resolution dated August 31, 2006 of the Court
of Appeals in CA-G.R. CV No. 80979 are
AFFIRMED.
SO ORDERED.
7
Page
G.R. No. L-6801 March 14, 1912
JULIANA BAGTAS, plaintiffs-appellee,
vs.
ISIDRO PAGUIO, ET AL., defendants-
appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the
Court of First Instance of the Province of
Bataan, admitting to probate a document which
was offered as the last will and testament of
Pioquinto Paguio y Pizarro. The will purports to
have been executed in the pueblo of Pilar,
Province of Bataan, on the 19th day of April,
1908. The testator died on the 28th of
September, 1909, a year and five months
following the date of the execution of the will.
The will was propounded by the executrix,
Juliana Bagtas, widow of the decedent, and the
opponents are a son and several grandchildren
by a former marriage, the latter being the
children of a deceased daughter.
The basis of the opposition to the
probation of the will is that the same was not
executed according to the formalities and
requirements of the law touching wills, and
further that the testator was not in the full of
enjoyment and use of his mental faculties and
was without the mental capacity necessary to
execute a valid will.
The record shows that the testator,
Pioquinto Paguio, for some fourteen of fifteen
years prior to the time of his death suffered
from a paralysis of the left side of his body; that
a few years prior to his death his hearing
became impaired and that he lost the power of
speech. Owing to the paralysis of certain
muscles his head fell to one side, and saliva
ran from his mouth. He retained the use of his
right hand, however, and was able to write
fairly well. Through the medium of signs he
was able to indicate his wishes to his wife and
to other members of his family.
At the time of the execution of the will
there were present the four testamentary
witnesses, Agustin Paguio, Anacleto Paguio,
and Pedro Paguio, and attorney, Señor Marco,
and one Florentino Ramos. Anacleto Paguio
and the attorney have since died, and
consequently their testimony was not available
upon the trial of the case in the lower court.
The other three testamentary witnesses and
the witness Florentino Ramos testified as to
the manner in which the will was executed.
According to the uncontroverted testimony of
these witnesses the will was executed in the
following manner:
Pioquinto Paguio, the testator, wrote out
on pieces of paper notes and items relating to
the disposition of his property, and these notes
were in turn delivered to Señor Marco, who
transcribed them and put them in form. The
witnesses testify that the pieces of paper upon
which the notes were written are delivered to
attorney by the testator; that the attorney read
them to the testator asking if they were his
testamentary dispositions; that the testator
assented each time with an affirmative
movement of his head; that after the will as a
whole had been thus written by the attorney, it
was read in a loud voice in the presence of the
testator and the witnesses; that Señor Marco
gave the document to the testator; that the
latter, after looking over it, signed it in the
presence of the four subscribing witnesses;
and that they in turn signed it in the presence
of the testator and each other.
These are the facts of record with
reference to the execution of the will and we
are in perfect accord with the judgment of the
lower court that the formalities of the Code of
Civil Procedure have been fully complied with.
This brings us now to a consideration of
appellants' second assignment of error, viz, the
testator's alleged mental incapacity at the time
of the execution of the will. Upon this point
considerable evidence was adduced at the
trial. One of the attesting witnesses testified
that at the time of the execution of the will the
testator was in his right mind, and that although
he was seriously ill, he indicated by
movements of his head what his wishes were.
Another of the attesting witnesses stated that
he was not able to say whether decedent had
the full use of his mental faculties or not,
because he had been ill for some years, and
that he (the witnesses) was not a physician.
The other subscribing witness, Pedro Paguio,
testified in the lower court as a witness for the
opponents. He was unable to state whether or
not the will was the wish of the testator. The
only reasons he gave for his statement were
the infirmity and advanced age of the testator
and the fact that he was unable to speak. The
witness stated that the testator signed the will,
and he verified his own signature as a
subscribing witness.
Florentino Ramos, although not an
attesting witness, stated that he was present
when the will was executed and his testimony
was cumulative in corroboration of the manner
in which the will was executed and as to the
fact that the testator signed the will. This
witness also stated that he had frequently
transacted matters of business for the
decedent and had written letters and made
inventories of his property at his request, and
8
that immediately before and after the execution
Page
of the will he had performed offices of his
character. He stated that the decedent was
able to communicate his thoughts by writing.
The testimony of this witness clearly indicates
the presence of mental capacity on the part of
the testator. Among other witnesses for the
opponents were two physician, Doctor Basa
and Doctor Viado. Doctor Basa testified that he
had attended the testator some four or five
years prior to his death and that the latter had
suffered from a cerebral congestion from which
the paralysis resulted. The following question
was propounded to Doctor Basa:
Q. Referring to mental condition in
which you found him the last time you
attended him, do you think he was in his
right mind?
A. I can not say exactly whether he
was in his right mind, but I noted some
mental disorder, because when I spoke
to him he did not answer me.
Doctor Basa testified at more length, but
the substance of his testimony is that the
testator had suffered a paralysis and that he
had noticed some mental disorder. He does
not say that the testator was not in his right
mind at the time of the execution of the will, nor
does he give it at his opinion that he was
without the necessary mental capacity to make
a valid will. He did not state in what way this
mental disorder had manifested itself other
than that he had noticed that the testator did
not reply to him on one occasion when he
visited him.
Doctor Viado, the other physician, have
never seen the testator, but his answer was in
reply to a hypothetical question as to what be
the mental condition of a person who was 79
years old and who had suffered from a malady
such as the testator was supposed to have had
according to the testimony of Doctor Basa,
whose testimony Doctor Viado had heard. He
replied and discussed at some length the
symptoms and consequences of the decease
from which the testator had suffered; he read in
support of his statements from a work by a
German Physician, Dr. Herman Eichost. In
answer, however, to a direct question, he
stated that he would be unable to certify to the
mental condition of a person who was suffering
from such a disease.
We do not think that the testimony of
these two physicians in any way strengthens
the contention of the appellants. Their
testimony only confirms the fact that the
testator had been for a number of years prior to
his death afflicted with paralysis, in
consequence of which his physician and
mental strength was greatly impaired. Neither
of them attempted to state what was the
mental condition of the testator at the time he
executed the will in question. There can be no
doubt that the testator's infirmities were of a
very serious character, and it is quite evident
that his mind was not as active as it had been
in the earlier years of his life. However, we can
not include from this that he wanting in the
necessary mental capacity to dispose of his
property by will.
The courts have been called upon
frequently to nullify wills executed under such
circumstances, but the weight of the authority
is in support if the principle that it is only when
those seeking to overthrow the will have clearly
established the charge of mental incapacity
that the courts will intervene to set aside a
testamentary document of this character. In the
case of Bugnao vs. Ubag (14 Phil. Rep., 163),
the question of testamentary capacity was
discussed by this court. The numerous
citations there given from the decisions of the
United States courts are especially applicable
to the case at bar and have our approval. In
this jurisdiction the presumption of law is in
favor of the mental capacity of the testator and
the burden is upon the contestants of the will to
prove the lack of testamentary capacity. (In the
matter of the will of Cabigting, 14 Phil. Rep.,
463; in the matter of the will of Butalid, 10 Phil.
Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep.,
689.)
The rule of law relating to the
presumption of mental soundness is well
established, and the testator in the case at bar
never having been adjudged insane by a court
of competent jurisdiction, this presumption
continues, and it is therefore incumbent upon
the opponents to overcome this legal
presumption by proper evidence. This we think
they have failed to do. There are many cases
and authorities which we might cite to show
that the courts have repeatedly held that mere
weakness of mind and body, induced by age
and disease do not render a person incapable
of making a will. The law does not require that
a person shall continue in the full enjoyment
and use of his pristine physical and mental
powers in order to execute a valid will. If such
were the legal standard, few indeed would be
the number of wills that could meet such
exacting requirements. The authorities, both
medical and legal, are universal in statement
that the question of mental capacity is one of
degree, and that there are many gradations
from the highest degree of mental soundness
to the lowest conditions of diseased mentality
which are denominated as insanity and idiocy.
The right to dispose of property by
testamentary disposition is as sacred as any
9
other right which a person may exercise and
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this right should not be nullified unless mental
incapacity is established in a positive and
conclusive manner. In discussing the question
of testamentary capacity, it is stated in volume
28, 70, of the American and English
Encyclopedia of Law, that —
Contrary to the very prevalent lay
impression, perfect soundness of mind
is not essential to testamentary
capacity. A testator may be afflicted with
a variety of mental weaknesses,
disorders, or peculiarities and still be
capable in law of executing a valid will.
(See the numerous cases there cited in
support of this statement.)
The rule relating to testamentary
capacity is stated in Buswell on Insanity,
section 365, and quoted with approval
in Campbell vs. Campbell (130 Ill., 466), as
follows:
To constitute a sound and disposing
mind, it is not necessary that the mind
shall be wholly unbroken, unimpaired, or
unshattered by disease or otherwise, or
that the testator should be in the full
possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule
is thus stated:
The question is not so much, that was
the degree of memory possessed by the
testator, as, had he a disposing
memory? Was he able to remember the
property he was about to bequeath, the
manner of disturbing it, and the objects
of his bounty? In a word, were his mind
and memory sufficiently sound to enable
him to know and understand the
business in which he was engaged at
the time when he executed his will. (See
authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495),
the following facts appeared upon the trial of
the case: The testator died at the age of nearly
102 years. In his early years he was an
intelligent and well informed man. About seven
years prior to his death he suffered a paralytic
stroke and from that time his mind and memory
were mush enfeebled. He became very dull of
hearing and in consequence of the shrinking of
his brain he was affected with senile cataract
causing total blindness. He became filthy and
obscene in his habits, although formerly he
was observant of the properties of life. The
court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme
distress, nor debility of body will affect
the capacity to make a will, if sufficient
intelligence remains. The failure of
memory is not sufficient to create the
incapacity, unless it be total, or extend
to his immediate family or property. . . .
xxx xxx xxx
Dougal (the testator) had lived over one
hundred years before he made the will,
and his physical and mental weakness
and defective memory were in striking
contrast with their strength in the
meridian of his life. He was blind; not
deaf, but hearing impaired; his mind
acted slowly, he was forgetful or recent
events, especially of names, and
repeated questions in conversation; and
sometimes, when aroused for sleep or
slumber, would seem bewildered. It is
not singular that some of those who had
known him when he was remarkable for
vigor and intelligence, are of the opinion
that his reason was so far gone that he
was incapable of making a will, although
they never heard him utter an irrational
expression.
In the above case the will was
sustained. In the case at bar we might draw the
same contrast as was pictured by the court in
the case just quoted. The striking change in the
physical and mental vigor of the testator during
the last years of his life may have led some of
those who knew him in his earlier days to
entertain doubts as to his mental capacity to
make a will, yet we think that the statements of
the witnesses to the execution of the will and
statements of the conduct of the testator at that
time all indicate that he unquestionably had
mental capacity and that he exercised it on this
occasion. At the time of the execution of the
will it does not appear that his conduct was
irrational in any particular. He seems to have
comprehended clearly what the nature of the
business was in which he was engaged. The
evidence show that the writing and execution
of the will occupied a period several hours and
that the testator was present during all this
time, taking an active part in all the
proceedings. Again, the will in the case at bar
is perfectly reasonable and its dispositions are
those of a rational person.
For the reasons above stated, the order
probating the will should be and the same is
hereby affirmed, with costs of this instance
against the appellants.
10
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G.R. No. 4445 September 18, 1909
CATALINA BUGNAO, proponent-appellee,
vs.
FRANCISCO UBAG, ET AL., contestants-
appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the
Court of First Instance of Oriental Negros,
admitting to probate a document purporting to
be the last will and testament of Domingo
Ubag, deceased. The instrument was
propounded by his widow, Catalina Bugnao,
the sole beneficiary thereunder, and probate
was contested by the appellants, who are
brothers and sisters of the deceased, and who
would be entitled to share in the distribution of
his estate, if probate were denied, as it
appears that the deceased left no heirs in the
direct ascending or descending line.
Appellants contend that the evidence of
record is not sufficient to establish the
execution of the alleged will in the manner and
form prescribed in section 618 of the Code of
Civil Procedure; and that at the time when it is
alleged that the will was executed, Ubag was
not of sound mind and memory, and was
physically and mentally incapable of making a
will.
The instrument propounded for probate
purports to be the last will and testament of
Domingo Ubag, signed by him in the presence
of three subscribing and attesting witnesses,
and appears upon its face to have been duly
executed in accordance with the provisions of
the Code of Civil Procedure touching the
making of wills.
Two of the subscribing witnesses, Victor
J. Bingtoy and Catalino Mariño, testified in
support of the will, the latter being the justice of
the peace of the municipality wherein it was
executed; and their testimony was
corroborated in all important details by the
testimony of the proponent herself, who was
present when the will was made. It does not
appear from the record why the third
subscribing witness was not called; but since
counsel for the contestants makes no comment
upon his absence, we think it may safely be
inferred that there was some good and
sufficient reason therefore. In passing,
however, it may be well to observe that, when
because of death, sickness, absence, or for
any other reason, it is not practicable to call to
the witness stand all the subscribing witnesses
to a will offered for probate, the reason for the
absence of any of these witnesses should be
made to appear of record, and this especially
in cases such as the one at bar, wherein there
is a contests.
The subscribing witnesses gave full and
detailed accounts of the execution of the will
and swore that the testator, at the time of its
execution, was of sound mind and memory,
and in their presence attached his signature
thereto as his last will and testament, and that
in his presence and in the presence of each
other, they as well as the third subscribing
witness. Despite the searching and exhaustive
cross-examination to which they were
subjected, counsel for appellants could point to
no flaw in their testimony save an alleged
contradiction as to a single incident which
occurred at or about the time when the will was
executed a contradiction, however, which we
think is more apparent than real. One of the
witnesses stated that the deceased sat up in
bed and signed his name to the will, and that
after its execution food was given him by his
wife; while the other testified that he was
assisted into a sitting position, and was given
something to eat before he signed his name.
We think the evidence discloses that his wife
aided the sick man to sit up in bed at the time
when he signed his name to the instrument,
and that he was given nourishment while he
was in that position, but it is not quite clear
whether this was immediately before or after,
or both before and after he attached his
signature to the will. To say that the sick man
sat up or raised himself up in bed is not
necessarily in conflict with the fact that he
received assistance in doing so; and it is not at
all improbable or impossible that nourishment
might have been given to him both before and
after signing the will, and that one witness
might remember the former occasion and the
other witness might recall the latter, although
neither witness could recall both. But, however
this may have been, we do not think that a
slight lapse of memory on the part of one or the
other witness, as to the precise details of an
unimportant incident, to which his attention
may not have been particularly directed, is
sufficient to raise a doubt as to the veracity of
these witnesses, or as to the truth and
accuracy of their recollection of the fact of the
execution of the instrument. Of course, a
number of contradictions in the testimony of
alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or
even a single contradiction as to a particular
incident, where the incident was of such a
nature that the intention of any person who
was present must have been directed to it, and
where the contradictory statements in regard to
it are so clear and explicit as to negative the
11
possibility or probability of mistake, might well
be sufficient to justify the conclusion that the
Page
witnesses could not possibly have been
present, together, at the time when it is alleged
the will was executed; but the apparent
contradictions in the testimony of the witnesses
in the case at bar fall far short of raising a
doubt a to their veracity, and on the other hand
their testimony as a whole gives such clear,
explicit, and detailed account of all that
occurred, and is so convincing and altogether
satisfactory that we have no doubt that the trial
judge who heard them testify properly
accepted their testimony as worthy of entire
confidence and belief.
The contestants put upon the stand four
witnesses for the purpose of proving that at the
time and on the occasion when the subscribing
witnesses testified that the will was executed,
these witnesses were not in the house with the
testator, and that the alleged testator was at
that time in such physical and mental condition
that it was impossible for him to have made a
will. Two of these witnesses, upon cross-
examination, admitted that they were not in the
house at or between the hours of four and six
in the afternoon of the day on which the will is
alleged to have been made, this being the time
at which the witnesses in support of the will
testified that it was executed. Of the other
witnesses, one is a contestant of the will,
Macario Ubag, a brother of the testator, and
the other, Canuto Sinoy, his close relative.
These witnesses swore that they were in the
house of the deceased, where he was lying ill,
at or about the time when it is alleged that the
will was executed, and that at that time the
alleged subscribing witnesses were not in the
house, and the alleged testator was so sick
that he was unable to speak, to understand, or
to make himself understood, and that he was
wholly incapacitated to make a will. But the
testimony of Macario Ubag is in our opinion
wholly unworthy of credence. In addition to his
manifest interest in the result of the
investigation, it clearly discloses a fixed and
settled purpose to overthrow the will at all
costs, and to that end an utter disregard of the
truth, and readiness to swear to any fact which
he imagined would aid in securing his object.
An admittedly genuine and authentic signature
of the deceased was introduced in evidence for
comparison with the signature attached to the
will, but this witness in his anxiety to deny the
genuineness of the signature of his brother to
the will, promptly and positively swore that the
admittedly genuine signature was not his
brother's signature, and only corrected his
erroneous statement in response to a
somewhat suggestive question by his attorney
which evidently gave him to understand that
his former answer was likely to prejudice his
own cause. On cross-examination, he was
forced to admit that because his brother and
his brother's wife (in those favor the will was
made) were Aglipayanos, he and his other
brothers and sisters had not visited them for
many months prior to the one particular
occasion as to which testified; and he admitted
further, that, although he lived near at hand, at
no time thereafter did he or any of the other
members of his family visit their dying brother,
and that they did not even attend the funeral. If
the testimony of this witness could be accepted
as true, it would be a remarkable coincidence
indeed, that the subscribing witnesses to the
alleged will should have falsely pretended to
have joined in its execution on the very day,
and at the precise hour, when this interested
witness happened to pay his only visit to his
brother during his last illness, so that the
testimony of this witness would furnish
conclusive evidence in support of the
allegations of the contestants that the alleged
will was not executed at the time and place or
in the manner and form alleged by the
subscribing witnesses. We do not think that the
testimony of this witness nor any of the other
witnesses for the contestants is sufficient to
raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to
the fact of the execution of the will, or as to the
manner and from in which it was executed.
In the course of the proceedings, an
admittedly genuine signature of the deceased
was introduced in evidence, and upon a
comparison of this signature with the signature
attached to the instrument in question, we are
wholly of the opinion of the trial judge, who
held in this connection as follows:
No expert evidence has been adduced
with regard to these two signatures, and
the presiding judge of this court does
not claim to possess any special expert
knowledge in the matter of signatures;
nevertheless, the court has compared
these two signatures, and does not find
that any material differences exists
between the same. It is true that the
signature which appears in the
document offered for authentication
discloses that at the time of writing the
subscriber was more deliberate in his
movements, but two facts must be
acknowledge: First, that the testator was
seriously ill, and the other fact, that for
some reason which is not stated the
testator was unable to see, and was a
person who was not in the habit of
signing his name every day.
These facts should sufficiently explain
12
whatever difference may exist between
the two signatures, but the court finds
Page
 that the principal strokes in the two
signatures are identical.
That the testator was mentally capable
of making the will is in our opinion fully
established by the testimony of the subscribing
witnesses who swore positively that, at the
time of its execution, he was of sound mind
and memory. It is true that their testimony
discloses the fact that he was at that time
extremely ill, in an advanced stage of
tuberculosis complicated with severe
intermittent attacks of asthma; that he was too
sick to rise unaided from his bed; that he
needed assistance even to rise himself to a
sitting position; and that during the paroxysms
of asthma to which he was subject he could not
speak; but all this evidence of physical
weakness in no wise establishes his mental
incapacity or a lack of testamentary capacity,
and indeed the evidence of the subscribing
witnesses as to the aid furnished them by the
testator in preparing the will, and his clear
recollection of the boundaries and physical
description of the various parcels of land set
out therein, taken together with the fact that he
was able to give to the person who wrote the
will clear and explicit instructions as to his
desires touching the disposition of his property,
is strong evidence of his testamentary
capacity.
Counsel for appellant suggests that the
fact that the alleged will leaves all the property
of the testator to his widow, and wholly fails to
make any provision for his brothers or sisters,
indicates a lack of testamentary capacity and
undue influence; and because of the inherent
improbability that a man would make so
unnatural and unreasonable a will, they
contend that this fact indirectly corroborates
their contention that the deceased never did in
fact execute the will. But when it is considered
that the deceased at the time of his death had
no heirs in the ascending or descending line;
that a bitter family quarrel had long separated
him from his brothers and sisters, who declined
to have any relations with the testator because
he and his wife were adherents of the
Aglipayano Church; and that this quarrel was
so bitter that none of his brothers or sisters,
although some of them lived in the vicinity,
were present at the time of his death or
attended his funeral; we think the fact that the
deceased desired to leave and did leave all of
his property to his widow and made no
provision for his brothers and sisters, who
themselves were grown men and women, by
no means tends to disclose either an unsound
mind or the presence of undue influence on the
part of his wife, or in any wise corroborates
contestants' allegation that the will never was
executed.
It has been said that "the difficulty of
stating standards or tests by which to
determine the degree of mental capacity of a
particular person has been everywhere
recognized, and grows out of the inherent
impossibility of measuring mental capacity, or
its impairment by disease or other causes"
(Greene vs. Greene, 145 III., 264, 276); and
that "it is probable that no court has ever
attempted to lay down any definite rule in
respect to the exact amount of mental capacity
requisite for the making of a valid will, without
appreciating the difficulty of the undertaking"
(Trish vs. Newell, 62 III., 196, 203).
Between the highest degree of
soundness of mind and memory which
unquestionably carries with it full testamentary
capacity, and that degree of mental aberration
generally known as insanity or idiocy, there are
numberless degrees of mental capacity or
incapacity, and while on one hand it has been
held that "mere weakness of mind, or partial
imbecility from the disease of body, or from
age, will not render a person incapable of
making a will, a weak or feeble minded person
may make a valid will, provided he has
understanding memory sufficient to enable him
to know what he is about, and how or to whom
he is disposing of his property"
(Lodge vs.Lodge, 2 Houst. (Del.), 418); that,
"To constitute a sound and disposing mind, it is
not necessary that the mind should be
unbroken or unimpaired, unshattered by
disease or otherwise" (Sloan vs. Maxwell, 3 N.
J. Eq., 563); that "it has not been understood
that a testator must possess these qualities (of
sound and disposing mind and memory) in the
highest degree. . . . Few indeed would be the
wills confirmed, if this is correct. Pain,
sickness, debility of body, from age or infirmity,
would, according to its violence or duration, in
a greater or less degree, break in upon,
weaken, or derange the mind, but the
derangement must be such as deprives him of
the rational faculties common to man"
(Den. vs. Vancleve, 5 N. J. L.,680); and, that
"Sound mind does not mean a perfectly
balanced mind. The question of soundness is
one of degree" (Boughton vs. Knight, L. R.,3 P.
& D., 64; 42 L. J. P., 25); on the other hand, it
has been held that "testamentary incapacity
does not necessarily require that a person shall
actually be insane or of an unsound mind.
Weakness of intellect, whether it arises from
extreme old age from disease, or great bodily
infirmities or suffering, or from all these
combined, may render the testator incapable of
13
making a valid will, providing such weakness
really disqualifies her from knowing or
Page
appreciating the nature, effects, or
consequences of the act she is engaged in"
(Manatt vs. Scott, 106 Iowa, 203; 68 Am. St.
Rep., 293, 302).
But for the purposes of this decision it is
not necessary for us to attempt to lay down a
definition of testamentary capacity which will
cover all possible cases which may present
themselves, because, as will be seen from
what has already been said, the testator was,
at the time of making the instrument under
consideration, endowed with all the elements
of mental capacity set out in the following
definition of testamentary capacity which has
been frequently announced in courts of last
resort in England and the United States; and
while is some cases testamentary capacity has
been held to exist in the absence of proof of
some of these elements, there can be no
question that, in the absence of proof of very
exceptional circumstances, proof of the
existence of all these elements in sufficient to
establish the existence of testamentary
capacity.
Testamentary capacity is the capacity to
comprehend the nature of the
transaction which the testator is
engaged at the time, to recollect the
property to be disposed of and the
person who would naturally be
supposed to have claims upon the
testator, and to comprehend the manner
in which the instrument will distribute his
property among the objects of his
bounty.

(Cf. large array of cases cited in support

of this definition in the Encyclopedia of Law,
vol. 23, p. 71, second edition.)
In our opinion, the evidence of record
establishes in a strikingly conclusive manner
the execution of the instrument propounded as
the last will and testament of the deceased;
that it was made in strict conformity with the
requisites prescribed by law; and that, at the
time of its execution, the deceased was of
sound mind and memory, and executed the
instrument of his own free will and accord.
The order probating the will should be
land is hereby affirmed, with the cost of this
instance against the appellants.
14
Page
G.R. No. L-25966 November 1, 1926
In the matter of the estate of Tomas
Rodriguez, deceased. MANUEL TORRES,
special administrator, and LUZ LOPEZ DE
BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.
Marcaida, Capili and Ocampo and Camus,
Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.
STREET, J.:
This appeal involves a controversy over
one-half of the estate of Tomas Rodriguez,
decedent. The appellant, Margarita Lopez,
claims said half by the intestate succession as
next of kin and nearest heir; while the appellee,
Luz Lopez de Bueno, claims the same by
accredition and in the character of universal
heir the will of the decedent. The trial court
decided the point of controversy in favor of Luz
Lopez de Bueno, and Margariat Lopez
appealed.
The facts necessary to an
understanding of the case are these: On
January 3, 1924, Tomas Rodriguez executed
his last will and testament, in the second
clause of which he declared:
I institute as the only and universal heirs
to all my property, my cousin Vicente F.
Lopez and his daughter Luz Lopez de
Bueno.
Prior to the time of the execution of this will the
testator, Tomas Rodriguez, had been judicially
declared incapable of taking care of himself
and had been placed under the care of his
cousin Vicente F. Lopez, as guardian. On
January 7, 1924, or only four days after the will
above-mentioned was made, Vicente F. Lopez
died; and the testator, Tomas Rodriguez, died
on February 25, 1924, thereafter. At the time
the will was made Vicente F. Lopez had not
presented his final accounts as guardian, and
no such accounts had been presented by him
at the time of his death. Margariat Lopez was a
cousin and nearest relative of the decedent.
The will referred to, and after having been
contested, has been admitted to probate by
judicial determination (Torres and Lopez de
Bueno vs. Lopez, 48 Phil., 772).
Our discussion of the legal problem
presented should begin with article 753 of the
Civil Code which in effect declares that, with
certain exceptions in favor of near relatives, no
testamentary provision shall be valid when
made by a ward in favor of his guardian before
the final accounts of the latter have been
approved. This provision is of undoubted
application to the situation before us; and the
provision made in the will of Tomas Rodriguez
in favor of Vicente F. Lopez was not any
general incapacity on his part, but a special
incapacity due to the accidental relation of
guardian and ward existing between the
parties.
We now pass to article 982 of the Civil
Code, defining the right of accretion. It is there
declared, in effect, that accretion take place in
a testamentary succession, first when the two
or more persons are called to the same
inheritance or the same portion thereof without
special designation of shares; and secondly,
when one of the persons so called dies before
the testator or renounces the inheritance or is
disqualifying to receive it. In the case before us
we have a will calling Vicente F. Lopez and his
daughter, Luz Lopez de Bueno, to the same
inheritance without special designation of
shares. In addition to this, one of the persons
named as heir has predeceased the testator,
this person being also disqualified to receive
the estate even if he had been alive at the time
of the testator's death. This article (982) is
therefore also of exact application to the case
in hand; and its effect is to give to the survivor,
Luz Lopez de Bueno, not only the undivided
half which she would have received in
conjunction with her father if he had been alive
and qualified to take, but also the half which
pertained to him. There was no error whatever,
therefore, in the order of the trial court
declaring Luz Lopez de Bueno entitled to the
whole estate.
The argument in favor of the appellant
supposes that there has supervened a partial
intestacy with respect to the half of the estate
which was intended for Vicente F. Lopez and
that this half has descended to the appellant,
Margarita Lopez, as next of kin and sole heir at
law of the decedent. In this connection
attention is directed to article 764 of the Civil
Code wherein it is declared, among other
things, that a will may be valid even though the
person instituted as heir is disqualified to
inherit. Our attention is next invited to article
912 wherein it is declared, among other things,
that legal succession takes place if the heir
dies before the testator and also when the heir
instituted is disqualified to succeed. Upon
these provisions an argument is planted
conducting to the conclusion that the will of
Tomas Rodriguez was valid, notwithstanding
the fact that one of the individuals named as
heirs in the will was disqualified to take, and
that as a consequence Margarita Lopez s
entitled to inherit the share of said disqualified
heir.
We are the opinion that this contention
is untenable and that the appellee clearly has
the better right. In playing the provisions of the
15
Code it is the duty of the court to harmonize its
provisions as far as possible, giving due effect
Page
to all; and in case of conflict between two 13 Mucius Scaevola, pp. 372, 373, 285-287; 16
provisions the more general is to be Mucius Scaevola, 186). Says Escriche: "It is to
considered as being limited by the more be understood that one of the coheirs or
specific. As between articles 912 and 983, it is colegatees fails if nonexistent at the time of the
obvious that the former is the more general of making of the will, or he renounces the
the two, dealing, as it does, with the general inheritance or legacy, if he dies before the
topic of intestate succession while the latter is testator, if the condition be not fulfilled, or if he
more specific, defining the particular conditions becomes otherwise incapacitated. . . .
under which accretion takes place. In case of (Diccionario de Legislacion y Jurisprudencia,
conflict, therefore, the provisions of the former vol. I, p. 225.)lawphil.net
article must be considered limited by the latter. In conclusion it may be worth observing
Indeed, in subsection 3 of article 912 the that there has always existed both in the civil
provision with respect to intestate succession and in the common law a certain legal
is expressly subordinated to article 983 by the intendment, amounting to a mild presumption,
expression "and (if) there is no right of against partial intestacy. In Roman law, as is
accretion." It is true that the same express well known, partial testacy systems a
qualification is not found in subsection 4 of presumption against it, — a presumption which
article 912, yet it must be so understood, in has its basis in the supposed intention of the
view of the rule of interpretation above referred testator.
to, by which the more specific is held to control The judgment appealed from will be
the general. Besides, this interpretation affirmed, and it is so ordered, with costs
supplies the only possible means of against the appellant.
harmonizing the two provisions. In addition to
this, article 986 of the Civil Code affords
independent proof that intestate succession to
a vacant portion can only occur when accretion
is impossible.
The attorneys for the appellant direct
attention to the fact that, under paragraph 4 of
article 912, intestate succession occurs when
the heir instituted is disqualified to succeed
(incapaz de suceder), while, under the last
provision in paragraph 2 of article 982,
accretion occurs when one of the persons
called to inherit under the will is disqualified to
receive the inheritance (incapaz de recibirla). A
distinction is then drawn between incapacity to
succeed and incapacity to take, and it is
contended that the disability of Vicente F.
Lopez was such as to bring the case under
article 912 rather than 982. We are of the
opinion that the case cannot be made to turn
upon so refined an interpretation of the
language of the Code, and at any rate the
disability to which Vicente F. Lopez was
subject was not a general disability to succeed
but an accidental incapacity to receive the
legacy, a consideration which makes a case for
accretion rather than for intestate succession.
The opinions of the commentators, so
far as they have expressed themselves on the
subject, tend to the conclusion that the right of
accretion with regard to portions of an
inheritance left vacant by the death or
disqualification of one of the heirs or his
renunciation of the inheritance is governed by
article 912, without being limited, to the extent
supposed in appellant's brief, by provisions of
the Code relative to intestate succession
16

(Manresa, Comentarios al Codigo Civil

Español, 4th ed., vol. VII, pp. 310, 311; id., 34;
Page
In re will of the late Matea Abella. MONS.
SANTIAGO SANCHO, applicant-appellee,
vs.
MARCIANA ABELLA, opponent-appellant.
This is an appeal taken by the opponent
Marciana Abella from the judgment rendered
by the Court of First Instance of Ilocos Sur, the
dispositive part of which reads as follows:
Wherefore, this court is of the opinion,
and so holds, that the opposition filed by
Marciana Abella is without merit and,
therefore, it is hereby denied. The
application filed herein is granted and
the document, Exhibit A, is hereby
ordered and decreed probated as the
last will and testament of the late Matea
Abella. So ordered.
In support of her appeal, the appellant assigns
the following alleged errors in the decision of
the court a quo, to wit:
1. The lower court erred in holding that
Matea Abella was in the full enjoyment
of her mental faculties and executed the
document, Exhibit A, as a true
expression of her last will.
2. The lower court erred in holding that
the requirements of the law have been
complied with in the execution of the
will, Exhibit A.
3. The lower court erred in holding that
when the late Matea Abella affixed her
alleged signatures to the will, Exhibit A,
she did not act under the illegal and
undue influence of certain legatees.
4. The lower court erred in decreeing
the probate of the will, Exhibit A.
The following facts have been proven by
a preponderance of evidence presented during
the trial, to wit:
The testatrix, Matea Abella, resident of
the municipality of Sinait, Ilocos Sur, had been
informed that Dr. Antonio Querol of San
Fernando La Union, was a good physician. On
April 13, 1932, she left her home situated in the
said municipality of Sinait, accompanied by her
niece, Filomena Inay, to consult the said
physician in his clinic in San Fernando, La
Union, stopping at the convent of the parish
church of the said municipality, in charge of
Father Cordero with whom she was acquainted
he having been the parish priest of Sinait.
During her stay in the said convent, she went
to Dr. Antonio Querol's clinic twice within the
period of one week accompanied by her
aforesaid niece, Filomena Inay, to consult the
said physician who, after submitting her to a
general medical examination, found that she
was suffering from dyspepsia and cancer of the
stomach.
On or about April 26, 1932, Matea
Abella ordered a sexton of the convent to call
Attorney Teodoro R. Reinoso to whom she
expressed her desire to make a will, in the
presence of the Father Cordero's sister, Father
Zoilo Aguda, Macario Calug and the fiscal of
the convent. Inasmuch as the aforesaid
attorney had to attend to other business, he
could not finish his interview with the testatrix
on the first day and had to continue it the
following day, also in the presence of Father
Cordero, his sister, Filomena Inay and some
children who were then at the convent.
Inasmuch as he did not finish the interview on
the second day, the said attorney returned
again on the afternoon of the 28th and
continued it in the presence of the same
persons who entered and left the sala. At the
end of the interview, Matea Abella ordered he
niece, Filomena Inay, to bring her some papers
which were in her trunk, which she delivered to
the said attorney. After the will had been
drafted in Ilocano, the dialect of the testatrix,
Macario Calug read it to her and she approved
it. When the will had been copied clean, it was
again read to the testatrix and she express her
approval thereof, but inasmuch as it was rather
late at night, she did not care to sign the same
suggesting that it be postponed to the following
day, April 29, 1932, which was done. At about
7:30 o'clock on the morning of April 29, 1932,
the signing of the will took place in the corridor
of the convent. The testatrix Matea Abella was
the first to sign it on a table in the presence of
each and every one of the instrumental
witnesses thereto and of other persons,
including Father Cordero. After the testatrix,
each of the instrument witnesses signed in the
presence of the testatrix and of each and every
one of the other witnesses. After the will had
been signed, Attorney Teodoro R. Reinoso
delivered the original and the copies thereof to
the testatrix, retaining one for his file. On July
3, 1932, Matea Abella died of the senile debility
in the municipality of Sinait at the age of 88
years.
The opponent herein attempted to prove
that the testatrix was deaf and that her
eyesight was defective; that when one moved
away from her and again approached her she
was unable to recognize him; that it was
necessary to shout into her ear to call her for
meals; that she used to urinate on her clothes
without being aware of it; that she had a very
poor memory inasmuch as she used to try to
collect from her debtors in spite of the fact that
they had already paid their debts; that once,
although she had sold a parcel of land for P60
she said she had sold it for P160; that she was
17
unable to go downstairs without assistance;
that when she was called at mealtime she used
Page
to answer: "Why, I have already eaten"; that
she could not remember her properties nor the
names of her tenants; that she could no longer
read; that she often repeated to her tenants the
same questions regarding their crops; that she
had been suffering from the disabilities for
more than two months previous to her death;
that the deceased complained of headache
and of stomachache; that she already began to
be dotty five years before, and particularly a
few days previous to her death; that in her will
she bequeathed properties which she had
already donated to other persons.
We are face to face with two divergent
theories regarding the mental state of the
testatrix Matea Abella at the time of the
execution of her will, Exhibit A. The opponent
claims that, inasmuch as the testatrix was 88
years of age when she made her will, she was
already suffering from senile debility and
therefore her mental faculties were not
functioning normally anymore and that she was
not fully aware of her acts. As an indication of
her senile debility, she attempted to prove that
the testatrix had very poor memory in
connection with her properties and interest;
that she could not go downstairs without
assistance, and that she could not recall her
recent acts.
On the other hand, as to the mental
sanity of the testatrix at the time of the
execution of her will, we have the undisputed
fact of her having left her home in Sinait, Ilocos
Sur, on April 13, 1932, in order to go to San
Fernando, La Union, to consult Dr. Antonio
Querol — of whose ability she had heard so
much — regarding her headaches and
stomach trouble, stopping at the convent of the
parish church; the fact of her having walked
twice to the aforesaid doctor's clinic,
accompanied by her niece, Filomena Inay; the
fact that she had personally furnished the
aforesaid doctor with all the necessary data
regarding the history of her illness the fact of
her having brought with her in her trunk the
deeds to her properties; the fact of her having
called for Attorney Teodoro R. Reinoso; the
fact of her having personally furnished said
attorney all the data she wished to embody in
her relative to her properties and the persons
in whose favor she wished to bequeath them;
the fact of her not wishing to sign her will on
the night of April 28, 1932, but the following
day, in order to be able to see it better, and the
fact of her having affixed her signature, in her
own handwriting, to the original as well as to
the copies of her will which consisted of nine
pages. All these data show that the testatrix
was not so physically weak, nor so blind, nor
so deaf, nor so lacking in intelligence that she
could not, with full understanding thereof,
dispose of her properties and make a will.
Neither senile debility, nor blindness, nor
deafness, nor poor memory, is by itself
sufficient to incapacitate a person for making
his ill (Avelino vs. De la Cruz, 21 Phil., 521;
Bagtas vs. Paguio, 22 Phil., 227; Jocson vs.
Jocson, 46 Phil., 701; Amata and Almojuela vs.
Tablizo, 48 Phil., 485; Torres and Lopez de
Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p.
94, par. 44). The mere fact that in her will
Matea Abella disposed of properties, which she
had already donated to other persons at a prior
date, is not an indication of mental insanity. At
most it constitutes forgetfulness or a change of
mind, due to ignorance of the irrevocability of
certain donations.lawphil.net
It is insinuated that the testatrix has
been unduly influenced in the execution of her
will. There is nothing in the records
establishing such claim either directly or
indirectly. The fact of her having stopped at the
convent of the parish church of San Fernando,
La Union, is not unusual in the Philippines
where, due to lack of hotels, the town convents
are usually given preference by strangers
because they are given better
accommodations and allowed more freedom.
In the present case, the testatrix Matea Abella
was a stranger in San Fernando, La Union.
Inasmuch as Father Cordero, the parish priest
of the said town, was well known to her having
served in the church of Sinait, Ilocos Sur, in the
same capacity, she did not have any difficulties
in obtaining accommodations in his convent.
The fact that Matea Abella stopped at a
convent and enjoyed the hospitality of a priest
who gave her accommodations therein, nor the
fact that the will was executed in the convent in
question in the presence of the parish priest
and witnessed by another priest, could
certainly not be considered as an influence
which placed her under the obligation to
bequeath of her property to the bishop of said
diocese.
In view of the foregoing considerations,
we are of the opinion and so hold: (1) That
neither senile ability, nor deafness, nor
blindness, nor poor memory, is by itself
sufficient to establish the presumption that the
person suffering therefrom is not in the full
enjoyment of his mental faculties, when there
is sufficient evidence of his mental sanity at the
time of the execution of the will; and (2) that
neither the fact of her being given
accommodations in a convent, nor the
presence of the parish priest, nor a priest
acting as a witness, constitutes undue
influence sufficient to justify the annulment of a
legacy in favor of the bishop of a diocese made
18
in her will by a testatrix 88 years of age,
suffering from defective eyesight and hearing,
Page
while she is stopping at a convent within the
aforestated diocese.
Wherefore, not finding any error in the judgment
appealed from, it is hereby affirmed in toto, with the
costs against the appellant. So ordered.

19
Page
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O.
BETTS, JOSE MADARETA, ESTEBAN P.
RAMIREZ, and THE REGISTER OF DEEDS
FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA
BUENVIAJE, FERNANDO BUENVIAJE,
FERNANDO ALSUA, represented by his
guardian, CLOTILDE S. ALSUA and PABLO
ALSUA, respondents.
GUERRERO, J.:1äwphï1.ñët
This is an appeal by certiorari from the
decision of the Court of Appeals in CA-G.R.
Nos. 54492-R and 54493-R which reversed the
decision of the Court of First Instance of Albay
allowing the probate of the win of Don Jesus
Alsua in Special Proceedings No. 699 and
dismissing the complaint in Civil Case 3068
after declaring the two deeds of sale executed
by Don Jesus Alsua legal and valid. The
respondent court 1 denied the probate of the
will, declared null and void the two sales
subject of the complaint and ordered the
defendants, petitioners herein, to pay damages
to the plaintiffs, now the private respondents,
the sum of Five Thousand Pesos (P5,000.00),
to render an accounting of the properties in
their possession and to reimburse the latter the
net gain in the proportion that appertains to
them in the properties from the date of the
firing of the complaint up to complete
restoration plus Fifty Thousand Pesos
(P50,000.00) as attorney's fees and costs.
The antecedent events leading to the
filing of these two consolidated actions are the
following.
On November 25, 1949, Don Jesus
Alsua and his wife, Doñ;a Florentina Rella,
both of Ligao, Albay, together with all their
living children, Francisca Alsua-Betts, Pablo
Alsua, Fernando Alsua thru this judicial
guardian Clotilde Samson, and Amparo Alsua
de Buenviaje, entered into a duly notarized
agreement, Escritura de Particion
Extrajudicial (Exhibit 8), over the then present
and existing properties of the spouses Don
Jesus and Doñ;a Florentina enumerated in a
prepared inventory, Exhibit 8-A, the essential
features of which are stated in private
respondents' Brief, pp. 26-29, to wit:
(1) Basis of the partition: Inventory
(Annex A) of all the properties of the
Alsua spouses, which inventory consists
of 97 pages, all of them signed by the
spouses and all the above named heirs
in the left margin of every page (parafo
primers).
(2) An acknowledgment of the spouses
that all the properties described in the
inventory (Annex A) are conjugal
properties with the exception of five
parcels of land Identified with the figures
of 1 to 5 and 30 shares of San Miguel
Brewery stock which are paraphernal
properties of the late Doñ;a Tinay
(segundo parafo).
(3) An acknowledgment that during their
marriage, they had nine children but five
of them died minors, unmarried (parafo
tercero y cuatro).
(4) An acknowledgment that on the
basis of Article 1056 of the Civil Code
(old) to avoid Possible
misunderstanding among their children
concerning the inheritance they are
entitled to in the event of death of one of
them they have decided to effectuate an
extrajudicial partition of all the properties
described in Annex "A" thereto under
the following terms and conditions:
(Parafo quinto):
To Francisca Alsua, married to Joseph
O. Betts were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 1-12 of said
inventory or, 34 parcels of land with a total land
area of 5,720,364 sq. meters, with a book or
appraised value of P69,740.00.
To Pablo Alsua, married to Teresa
Locsin were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 12-20 of said
inventory or, 26 parcels of land with a total land
area of 5,679,262 sq. meters, with a book or
appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde
Samson were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 20-33 of said
inventory or, 47 parcels of land with a total land
area of 6,639,810 sq. meters, with a book or
appraised value of P89,300.00.
To Amparo Alsua, married to Fernando
Buenviaje were allotted or assigned all the real
properties with the improvements thereon
specifically described from pages 33-47 of said
inventory or, 47 parcels of land with a total land
area of 5,630,715 sq. meters, with a book or
appraised value of P58,830.00. têñ.£îhqwâ£
(a) Each and every one of the heirs
named above acknowledge and admit
that the totality of the properties allotted
and adjudicated to the heirs as
described in the preceding paragraph,
constitute one half of the properties
described in Annex "A", including any
amount of cash deposited.
(b) That all the heirs acknowledge and
20
admit that all the properties assigned to
them as their hereditary portion
Page
represent one-half not only of the
conjugal properties but includes the
paraphernal properties — waiving now
and forever any complaint or claim they
have or they may have concerning the
amount, value, extension and location of
the properties that are allotted to each
and everyone. They also waive any
claim they have or they may have over
the remaining portion of the properties,
which spouses reserved for themselves.
(c) That in case of death of one of the
spouses, each and everyone of the
heirs acknowledge that the properties
which are left in the possession of the
surviving spouse, including any amount
in cash, are even less than the one- half
that should correspond in absolute
ownership as his legitimate participation
in the conjugal properties. In
consequence they waive any claim that
they have or may have over said portion
of said properties or any amount in cash
during the lifetime of the surviving
spouse, including any right or claim they
have or they may have over the
paraphernal properties of Doñ;a Tinay in
the event the surviving spouse is Don
Jesus.
(d) The spouses on their part in case of
death of any one of them, the surviving
spouse waives any claim he or she may
have over the properties assigned or
adjudicated to the heirs under and by
virtue of this deed. The properties which
were reserved for them (the spouses)
should be considered as his or her
legitimate participation in the conjugal
properties and the fair compensation of
his or her usufruct on the properties that
the surviving spouse reserved for
himself or herself which shag be
distributed in equal shares among the
heirs upon his or her death unless said
properties of some of them have been
disposed of during the lifetime of the
surviving spouse.
(e) Any heir who may dare question the
validity and legitimacy of the provision
contained herein shall be under
obligation to pay to the other heirs, in
the concept of damages and prejudice,
the sum of P5,000.00 plus attorney's
fees.
(f) The provisions of this deed shall bind
the successors of the herein heirs.
(g) In the event of death of one of the
spouses, the properties assigned or
adjudicated to each and everyone of the
heirs shall be considered as his share or
participation in the estate or as his
inheritance left by the deceased and
each heir shall become the absolute
owner of the properties adjudicated to
him under this deed.
On January 5, 1955, Don Jesus and
Doñ;a Florentina, also known as Doñ;a Tinay
separately executed their respective
holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and in
implementation of the extrajudicial partition of
November 25, 1949. Their holographic wills
similarly provided for the institution of the other
to his or her share in the conjugal properties,
the other half of the conjugal assets having
been partitioned to constitute their legitime
among their four living children in the
Extrajudicial Partition of 1949. The wigs also
declared that in the event of future acquisitions
of other properties by either of them, one-half
thereof would belong to the other spouse, and
the other half shall be divided equally among
the four children. The holographic will of Doñ;a
Tinay written in Spanish reads, as translated:
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67
years old, Filipina, married to Don Jesus
Alsua, resident of and with postal
address in the Municipality of Ligao,
Province of Albay, Philippines, being in
the full possession of my mental and
physical faculties freely and
spontaneously execute this my last will
and testament in my handwriting and
signed by me and expressed in the
Spanish language which I speak, write
and understand, this 5th day of January,
1955 in the Municipality of Ligao,
Province of Albay, and in which I ordain
and provide:
First: That in or about the year 1906 I
was married to my husband Don Jesus
Alsua and begot nine (9) children with
him, four (4) of whom are still living and
they are Francisco Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. The
other five (5) died during their minority,
single and without children.
Second: That after my marriage to my
husband Don Jesus Alsua and during
our conjugal union, and as a result of
our efforts and industry, we were able to
acquire conjugal properties consisting of
abaca (abales) and cacao lands and
urban lands registered in the office of
the Registry of Property of the Province
of Albay and in the City of Manila.
Third: That I institute as my heirs with
right to inherit the following- my spouse
21
Don Jesus Alsua, one-half (1/2) of my
properties, real and personal, and the
Page
 other half, to my children Francisco
Alsua, married to Joseph O. Betts,
Pablo Alsua, Fernando Alsua, married
to Clotilde Samson, and Amparo Alsua,
married to Fernando Buenviaje, in equal
parts. It is to be understood, however,
that the other half that corresponds as
legitime to my above named children
have already been given to them,
pursuant to a document dated
November 25, 1949 and ratified on the
same day, month and year before
Notary Public Segundo G. Flores (Reg.
No. 525; Pag. 15; Lib. 11; Series of
1949) enjoining each and everyone of
them to respect and faithfully comply
with each and every clause contained in
the said document.
Fourth: That should I acquire new
properties after the execution of this
testament, the same shall be partitioned
among my spouse and above named
children or the children mentioned in
above par. 3 in the same proportion that
is, one-half (1 1/2) to my spouse; and
the other half to my children in equal
parts.
Fifth: That I name as my executor my
husband Don Jesus Alsua without
having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in
my own handwriting this testament on
this 5th day of January, 1955 in the
Municipality of Ligao, Province of Albay,
Philippines. têñ.£îhqwâ£
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on appeal pp. 420-423,
CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua
executed a separate but similar holographic
will on the same day, Jan. 5, 1955 in exactly
the same terms and conditions as the above
will of his wife.
On May 21, 1956, the spouses Don
Jesus and Doñ;a Tinay filed before the Court of
First Instance of Albay their respective petitions
for the probate of their respective holographic
wins which were docketed as Special
Proceedings No. 484 (Jesus Alsua, Petitioner)
and Special Proceedings No. 485 (Doñ;a
Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don
Jesus and Doñ;a Tinay executed their mutual
and reciprocal codicils amending and
supplementing their respective holographic
wins. Again, the codicils similarly
acknowledged and provided that one-half of all
the properties of the spouses, conjugal and
paraphernal, had been disposed of, conveyed
to and partitioned among their legitimate heirs
in the "Escritura de Particion" of November 25,
1949, but that they reserved for themselves
(the spouses Don Jesus and Doñ;a Tinay) the
other half or those not disposed of to the said
legitimate heirs under the above agreement of
partition, and that they mutually and
reciprocally bequeathed unto each other their
participation therein as well as in all properties
which might be acquired subsequently. Each
spouse also declared that should she or he be
the surviving spouse, whatever belongs to him
or her or would pertain to him or her, would be
divided equally among the four children. It was
also declared in both codicils that upon the
death of either of the spouses, the surviving
spouse was designated mutually and
reciprocally as the executor or administrator of
all the properties reserved for themselves.
The codicil executed by Doñ;a Tinay,
written in Spanish reads, as translated:
CODICIL
This codicil supplements and amends
the preceding testament. That my
spouse and I have agreed to divide the
properties which we have acquired into
2 parts. The 1/2 that would correspond
to me covers all the properties that I
have partitioned among my children in
the Document of Partition dated
November 25, 1949 before Notary
Public Segundo G. Flores, Jr. (Doc. No.
525; Pag. No. 15; Lib. No. 11; Series of
1949) (and) even as the properties
which by reason of this testament I
leave to my husband as his share and
the other half that corresponds to my
husband constitutes an the properties
that up to now have not been disposed
of, particularly the urban lands situated
in Legaspi, Albay, Ligao of the Province
of Albay and in the City of Manila, with
the exception of that portion that I
bequeath to my husband as his
inheritance and his legitimate.
That I institute as my heirs with the right
to inherit my husband Don Jesus Alsua
and my children Francisco Alsua, Pablo
Alsua, Fernando Alsua and Amparo
Alsua. I leave to my aforecited children
all the properties described in the above
mentioned Document of Partition dated
November 25, 1949 which correspond
to each one of them and in the profits
(fruits) expressed in the same, and in
the event that the properties granted to
one or any of my children should exceed
in quantity or value those corresponding
to another or others, I hereby declare
22
that it is my will that the same be divided
Page
 among my children as their inheritance
from the free portion of my property.
I leave to my spouse Don Jesus Alsua
as his legitime and as Ws inheritance
the part of the free portion of my
property which have not been allocated
in favor of my children in the Document
of Partition aforecited and that which
should exceed 1/2 of the conjugal
property of gains that pertains to him as
above stated, including all those
properties which we shall acquire after
the execution of this document.
In case it should be God's will that I
survive my spouse, I hereby declare that
it is my will that any and all kinds of
property that pertain to me or would
pertain to me, which have not been
disposed of pursuant to the partition,
should be divided equally among my
above-mentioned heirs after my death.
Ligao, Albay, Philippines, August
14,1956.
(SGD.) FLORENTINA RALLA DE
ALSUA
(joint Record on Appeal pp. 423-425,
CA-G.R. No. 54492-R)
And as stated previously, on the same
day, August 14, 1956, Don Jesus executed
also a separate but similar codicil in exactly the
same terms and conditions as the above
codicil of his wife. Also on the same day of
August 14, 1956, the spouses Don Jesus and
Doñ;a Tinay both filed their respective
supplemental petitions for the probate of their
respective codicils in the probate proceedings
earlier filed. On February 19, 1957, their
respective holographic wins and the codicils
thereto were duly admitted to probate.
Upon the death of Doñ;a Tinay on
October 2, 1959, Don Jesus was named
executor to serve without bond in an order
issued by the probate court on October 13,
1959. Letters testamentary having been issued
in favor of Don Jesus, he took his oath of office
and performed his duties as such until July 1,
1960.
Thereafter in the early part of
November, 1959, Don Jesus cancelled his
holographic will in the presence of his
bookkeeper and secretary, Esteban P.
Ramirez, whom he instructed to make a list of
all his remaining properties with their
corresponding descriptions. His lawyer, Atty.
Gregorio imperial Sr. was then instructed to
draft a new will which was duly signed by Don
Jesus and his attesting witnesses on
November 14, 1959 at Ms home in Ligao,
Albay. This notarial will and testament (Exh. A)
of Don Jesus executed on November 14, 1959
had three essential features: (a) it expressly
cancelled, revoked and annulled all the
provisions of Don Jesus' holographic will of
January 5, 1955 and his codicil of August 14,
1956; (b) it provided for the collation of all his
properties donated to his four living children by
virtue of the "Escritura de Particion Extra.
judicial" of 1949, and that such properties be
taken into account in the partition of his estate
among the children; and (c) it instituted his
children as legatees/devisees of certain
specific properties, and as to the rest of the
properties and whatever may be subsequently
acquired in the future, before his death, were to
be given to Francisca and Pablo, naming
Francesca as executrix to serve without a
bond.
After all debts, funeral charges and
other expenses of the estate of Doñ;a Tinay
had been paid, all her heirs including Don
Jesus, submitted to the probate court for
approval a deed of partition executed on
December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the
partition of 1949, the holographic will and
codicil of Doñ;a Tinay. On July 6, 1960, the
court approved the partition of 1959 and on
January 6, 1961 declared the termination of the
proceedings on the estate of Doñ;a Tinay.
On May 6,1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein
Francisca Alsua Betts, as the executrix named
in the will of November 14, 1959, filed a
petition for the probate of said new will of Don
Jesus Alsua before the Court of First Instance
of Albay and was docketed as Special
Proceedings No. 699. Oppositions thereto
were filed by Pablo, Amparo and Fernando,
thru his judicial guardian Clotilde Samson, on
the following grounds: (a) that Don Jesus was
not of sound and disposing mind at the time of
the execution of the alleged will; (b) that the will
was executed under duress or influence of fear
or threats; or it was procured by undue and
improper pressure and influence on the part of
the main beneficiaries and of person or
persons in collusion with them, or the signature
of the testator was secured by or thru fraud; (c)
that the will was not executed according to the
formal requirements of the law; and (d) that the
alleged will subject of probate contravened the
Extrajudicial Partition of 1949 agreed upon by
him, his deceased spouse, Doñ;a Tinay, and
all his children, Francisco, Pablo, Amparo and
Fernando thru his judicial guardian Clotilde
Samson, and also contravened Don Jesus'
own probated holographic will and codicil of
23
1955 and 1956, respectively, essentially
confirming and implementing the said partition
Page
of 1949 which had already been partially
executed by all the signatories thereto in the
partition of the estate of Doñ;a Tinay in
December, 1959.
On the basis of Francisca's designation
as executrix in the new will dated November
14, 1959, the Probate Court appointed her
Administratrix of the estate of her late father,
Don Jesus Alsua. She then filed with the
Probate Court an inventory of the properties of
the estate which, according to the oppositors
therein (the private respondents now) did not
include some properties appearing in the
agreement of November 25. 1949 or in the
inventory attached thereto as Annex "A" and in
the "Escritura de Particion" of December 19,
1959 as belonging to or should pertain to Don
Jesus. According to the oppositors, these
properties consist of thirty- three (33) premium
agricultural lots with a total land area of
1,187,970 square meters, or approximately
119 hectares and with a total assessed value
of P48,410.00 or a probable total market value
of P238,000.00 at only P2,000.00 per hectare,
and four (4) commercial urban lots Ideally
located in the business section of Legazpi City
including the lot and the building presently
occupied by the well-known "Mayon Hotel" with
an assessed value of approximately
P117,260.00 or a probable market value at the
time of P469,040.00. It appearing from the new
will that these properties were bequeathed to
Pablo Alsua and Francisco Alsua-Betts,
specifically, 3 parcels of the 33 agricultural
lands to Pablo and the rest to Francisco, the
oppositors also raised in issue the non-
inclusion of said properties in the inventory of
the estate of their late father. In answer,
Francisco claimed ownership over the same,
alleging that she bought the properties from
their father and presenting the two Deeds of
Sale now being assailed, one dated August 26,
1961 purporting to show the sale of the 33
parcels of agricultural land to Francisco by their
father for the price of P70,000.00 and the other
dated November 26, 1962 evidencing the sale
of the four urban lots for the sum of
P80,000.00. Claiming fraud in the sales, the
oppositors filed Civil Case No. 3068, seeking
the annulment of the aforesaid two deeds of
sale, with damages, which upon agreement of
the parties was then jointly heard and tried with
Special Proceedings No. 699 for probate of the
Last Will and Testament of Don Jesus
executed on November 14, 1959.
After a joint hearing of the merits of
these two cases, the Court of First Instance of
Albay promulgated a decision on January 15,
1973, the dispositive portion of which
states: têñ.£îhqwâ£
WHEREFORE, in view of all the
foregoing, judgment is hereby rendered,
to wit:
1. In Special Proceedings 699, the Court
hereby APPROVES and ALLOWS the
Will executed by Don Jesus Alsua at
Ligao, Albay, on November 14, 1959,
which had been marked as Exhibit A,
consisting of nine (9) pages, and orders
that the same be made the basis for
division and distribution of the estate of
said testator;
2. In Civil Case 3068, the Court hereby
dismisses the complaint and holds that
the sale on August 26, 1961 (Exh. U)
and the sale on November 26, 1962
(Exh. W), are lawful and valid sales and
accordingly conveyed title to the
VENDEE thereof. The Plaintiffs in Civil
Case 3068. are ordered jointly and
severally to pay to the defendant,
Francisco Alsua Betts Fifty Thousand
Pesos (P50,000.00) as damages and
Fifty Thousand (P50,000.00) Pesos for
attorney's fees or a total of One
Hundred Thousand Pesos
(P100,000.00) and to pay the costs.
On appeal by herein respondents to the Court
of Appeals, the court reversed the appealed
decision in a judgment rendered on April 4,
1977, the dispositive portion of which states, as
translated, thus —
IN VIEW OF THE FOREGOING, this
Tribunal finds itself constrained to set
aside as it hereby sets aside the
decision appealed from in the following
manner: (1) in Special Proceedings 699,
the probate of the will, Exh. A, is hereby
denied; (2) in Civil Case No. 3068,
Exhs. U and W and the titles issued on
the basis thereof are hereby declared
null and void, ordering the appellees
Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of
fixed damages, the sum of P5,000.00
and to render an accounting of
properties in their possession and to
reimburse the plaintiffs the net gain, in
the proportion that appertains to them in
the properties subject of litigation in Civil
Case No. 3068 from the date of the filing
of this complaint, up to the complete
restoration of the properties pertaining
to (plaintiffs) pursuant to Article 2208 of
the New Civil Code, paragraph 11,
ordering them in addition to pay to the
plaintiffs and oppositors the sum of
P50,000.00 as attorney's fees, and the
24
costs.
Page
Hence, the petition at bar assailing the
respondent court's decision on four assigned
errors, to wit:
I. The respondent Court of
Appeals erred in not affirming the
findings of the probate court
(Special Proceedings No. 699)
that private respondents,
oppositors to the probate of the
will, are in estoppel to question
the competence of testator Don
Jesus Alsua.
II. The respondent Court of
Appeals grossly erred in holding
that testator Don Jesus Alsua
cannot revoke his previous will.
III. The respondent court's finding
is grounded entirely on
speculation, surmises or
conjectures resulting in a gross
misapprehension of facts.
IV. The respondent court grossly
erred in annulling the sales of
August 26, 1961 (Exh. U), and of
November 26, 1962 (Exh. W).
On the first issue of estoppel raised in
the assignment of errors, We hold that the
same is of no moment. The controversy as to
the competency or incompetency of Don Jesus
Alsua to execute his will cannot be determined
by acts of the herein private respondents as
oppositors to the will in formally agreeing in
writing jointly with the petitioner Francisca
Alsua de Betts that their father, Don Jesus
Alsua, be appointed by the court executor of
the will of their mother in Special Proceedings
No. 485, Testate Estate of Doñ;a Florentina
Ralla de Alsua and in subsequently petitioning
the court not to require Don Jesus Alsua to file
any accounting as executor in the proceedings,
which petitioners claim and was upheld by the
trial court as constituting estoppel on the part
of the private respondents from questioning the
competence of Don Jesus Alsua.
The principle of estoppel is not
applicable in probate proceedings, a ruling laid
down in the case of Testate Estate of the Late
Procopia Apostol Benedicta Obispo, et al vs.
Remedios Obispo, 50 O.G. 614, penned by
Justice J.B.L. Reyes, an eminent and
recognized authority on Civil Law when he was
still in the Court of Appeals, and We quote:
Finally, probate proceedings involve
public interest, and the application
therein of the rile of estoppel, when it win
block the ascertainment of the truth as to
the circumstances surrounding the
execution of a testament, would seem
inimical to public policy. Over and above
the interest of private parties is that of the
state to see that testamentary
dispositions be carried out if, and only if,
executed conformably to law.
The Supreme Court of New York aptly
said in Re Canfield's Will, 300 N.Y.S.,
502:
'The primary purpose of the
proceeding is not to establish
the existence of the right of any
living person, but to determine
whether or not the decedent
has performed the acts
specified by the pertinent
statutes, which are the essential
prerequisites to personal
direction of the mode of
devolution of his property on
death. There is no legal but
merely a moral duty resting
upon a proponent to attempt to
validate the wishes of the
departed, and he may and
frequently does receive no
personal benefit from the
performance of the act.
One of the most fundamental
conceptions of probate law, is
that it is the duty of the court to
effectuate, in so far as may be
compatible with the public
interest, the devolutionary
wishes of a deceased person
(Matter of Watson's Wilt 262
N.Y., 284, 294, 186, N.E., 787;
Matter of Marriman's Estate,
124 Misc. 320, 325, 208,
N.Y.S., 672; Foley, S., affirmed
217 app. Div., 733, 216 N.Y.S.,
126, Henderson, S., Matter of
Draske's Estate, 160 Misc. 587,
593, 290, N.Y.S., 581). To that
end, the court is, in effect, an
additional party to every
litigation affecting the disposal
of the assets of the deceased.
Matter of Van Valkenburgh's
Estate, 164 Misc. 295, 298,
N.Y.S., 219.'
The next issue that commands Our
attention is whether the respondent court erred
in not allowing the probate of the last will and
testament of Don Jesus Alsua. Petitioners
claim that the disallowance was based on
speculations, surmises or conjectures,
disregarding the facts as found by the trial
court. The Civil Court is very clear and explicit
in providing the cases where a will may be
disallowed under Article 839 which provides as
follows:
25
Page
 Art. 839. The will shall be
disallowed in any of the following
cases:
(1) If the formalities required by
law have not been complied with;
(2) If the testator was insane, or
otherwise mentally incapable of
making a wilt at the time of its
execution;
(3) If it was executed through
force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue
and improper pressure and
influence, on the part of the
beneficiary or of some other
person;
(5) If the signature of the testator
was procured by fraud,
(6) If the testator acted by
mistake or did not intend that the
instrument he signed should be
his will at the time of affixing his
signature thereto.
The issue under consideration appears to Us
to have been answered by the respondent
court itself when it accepted the findings of the
trial court on the due execution of the
questioned will and testament of Don Jesus,
declaring:
... and going back to the previous
question, whether the questioned will
and testament of November 14, 1959,
Exh. A, was executed in accordance
with Arts. 805-809 of the New Civil
Code, this Tribunal from the very
beginning accepts the findings of the
inferior court concerning the
question, têñ.£îhqwâ£
On October 2, 1959, Doñ;a Florentina
died at Ligao, Albay. About 2 weeks
after said death of his wife, Don Jesus
Alsua decided to make a new will,
thereby revoking and cancelling his
previous holographic will which he made
on January 5, 1955 and also its codicil
dated August 14, 1956. In the presence
of his bookkeeper and secretary,
Esteban P. Ramirez, he crossed out in
ink each and every page of said page
he wrote on each page the word
"cancelado", and affixed his signature
thereon (Exh V-5, V-6, consecutively up
to and including Exh. V-14). He then
instructed Ramirez to make a list of all s
properties with their corresponding
descriptions.
Meanwhile, Don Jesus Alsua sent for
his lawyer, Don Gregorio Imperial, Sr.
and the latter came accompanied by his
son, Atty. Jorge S, Imperial, who,
incidentally, is now a judge of the Court
of First Instance of Naga City,
Camarines Sur. Don Jesus informed his
lawyers that he wanted to make a new
will, and accordingly gave more detailed
instructions as to how he wanted to
divide his properties among his four
children. He handed to them a list and
on the left he indicated the name of the
child to whom the listed properties shall
pertain. Atty. Jorge Imperial took notes
of the instructions of Don Jesus Alsua.
To Don Jesus, Spanish is his major
language, as in fact his conversations
with Don Gregorio are always in
Spanish. A few days before November
14, 1959, Atty. Jorge S. Imperial
showed to Don Jesus the semi-final
draft of the will and after reading it Don
Jesus said that it was as directed by
him, and after making a few minor
corrections, he instructed Atty. Jorge S.
Imperial to put the win in final form. He
further told Atty, Jorge Imperial that the
signing of the will should be at his home
in Ligao, in the morning of November
14, 1959, and that the witnesses should
be Mr. Ramon Balana, the then Register
of Deeds of Albay; Mr. Jose Madarieta
who is a friend of the family; and Mr.
Jose Gaya who is a sort of employee of
Don Jesus.
Thus in the morning of November 14,
1959, Don Gregorio and Atty. Jorge S.
Imperial, riding in a sedan, stopped at
the Legaspi residence of Mr. Ramon
Balana, and informed the latter that Don
Jesus was requesting him to be one of
the attesting witnesses to his will. Mr.
Balana, having a very high regard for
Don Jesus, considered it an honor to be
so asked, and gladly went with the
Imperials. They arrived at the residence
of Don Jesus at Ligao; Albay, almost ten
o'clock of that morning, and they were
ushered in by Mr. Jose Gaya, and the
latter requested them to be seated at
the usual receiving room on the ground
floor while he announced their arrival to
Don Jesus who was on the second floor.
Soon Don Jesus came down, carrying
with him the will to be signed placed
inside a cartolina folder. He greeted Don
Gregorio, Mr. Balan, and Atty. Imperial
and immediately joined them in
conversation. Mr. Gaya called for Mr.
Jose Madarieta, whose residence is just
across the road from the house of Don
Jesus. Mr. Madarieta was already
26
informed by Don Jesus himself about
the fact of signing the will that morning,
Page
and so, on being advised by Mr. Gaya
that the Imperials had already arrived,
Madarieta proceeded to the residence of
Don Jesus, without much delay. With
the coming of Madarieta and the coming
back of Gaya, there were now six
people gathered in the living room,
namely: Don Jesus Alsua, Don Gregorio
Imperial Atty. Jorge S. Imperial Mr.
Ramon Balana, Mr. Jose Madarieta, and
Mr. Jose Gaya. All the witnesses who
testified for the petitioner declared that
Don Jesus was in bright and lively
conversation which ran from problems
of farming and the merits of French-
made wines. At 1 1:00 o'clock, Don
Gregorio made a remark that it is about
time to do what they were there for, and
this was followed by a more or less
statement from Jesus, who said:
'Preisamente es por lo que he
Hamado a ustedes que esten
presentes para ser testigos de
rni ultimo voluntad y completed, Atty. Jorge S. Imperial as
testamento que ha sido
preparado por el abogado Sr.
Gregorio Imperial segun mis
instrucciones cuyo documento
tengo aqui conmigo y morning. After all the three sets were
encuentro que, despues de lo
he leido, esta
satisfactoriamente hecho
segun mis instrucciones,
Como saben ustedes tengo
cuatro (4) hijos todos egos.'
(pp. 43-44, t.s.n., hearing of
December 7, 1967, Sarte.
On request of Don Jesus, all of them
moved to the big round table on another
part of the same sala for convenience in
signing because there were chairs all
around this table. The will which
consisted of nine pages, with a
duplicate, and triplicate was laid on the
round table and the signing began, with
Atty. Jorge S. Imperial assisting each
person signing by indicating the proper
place where the signature shall be
written. Don Jesus, as testator, signed
first. After signing the original and the
two other sets, the three sets were then
passed to Mr. Ramon Balana who
signed as attesting witness. After Mr.
Balana, Mr. Jose Madarieta signed next
as another attesting witness, and when
Mr. Madarieta finished signing all the
three sets, the same were passed to Mr.
Jose Gaya who also signed as the third
attesting witness. On each of the three
sets, Don Jesus signed ten times, —
one on the margin of each of the nine
pages, and at the end of the instrument
proper. Each of the three attesting
witnesses (Balana, Madarieta and
Gaya) signed eleven times on each set,
— one on the margin of each of the nine
pages, one at the end of the instrument
proper and one below the attestation
clause. The original will was marked as
Exh. A (or set A); the duplicate as Exh.
K (or set K) and the triplicate of Don
Jesus, Mr. Balana, Mr. Madarieta, and
Mr. Gaya were Identified by Mr. Balana,
Mr. Madarieta and Atty. (now Judge)
imperial. It was also clearly established
that when Don Jesus signed the will Mr.
Balana, Mr. Madarieta, and Mr. Gaya
were present and witnessed said
signing, and that when each of these
three witnesses was signing, Don Jesus
and the two other attesting witnesses
were present and Witnessing said
Signing. The signing by the testator and
the attesting witnesses having been
Notary Public with commission for the
entire province of Albay, notarized the
wilt and sealed it with his notarial seat
which seal he brought along that
notarized, they were all given back to
Don Jesus who placed them inside the
same folder. At that moment, it was
already about 12:30 P.M. and Don
Jesus invited all of them to lunch, which
invitation was gladly accepted by all of
then-L (pp. 474-480, Joint Record on
Appeal in CA-G.R. No. 54492-R)
which findings are supported by
the evidence, - it is quite difficult
to conclude that the same had
not complied with the
requirements of Arts. 804- 806 of
the New Civil Code. ... (CA
Decision, pp. 13-16, as
translated).
This cited portion of the appealed decision
accepts as a fact that the findings of the lower
court declaring the contested will as having
been executed with all the formal requirements
of a valid will, are supported by the evidence.
This finding is conclusive upon this Tribunal
and We cannot alter, review or revise the
same. Hence, there is no further need for Us to
dwell on the matter as both the lower court and
the respondent appellate court have declared
that these are the facts and such facts are fully
borne and supported by the records. We find
no error in the conclusion arrived at that the
contested will was duly executed in
27
accordance with law. We rule that the
questioned last will and testament of Don
Page
Jesus Alsua fully complied with the formal
requirements of the law.
Respondent court, however, denied
probate of the will after ,'noting certain details
which were a little bit difficult to reconcile with
the ordinary course of things and of life." First
was the fact that the spouses Don Jesus and
Doñ;a Tinay together with their four children
Francisco, Pablo, Amparo and Fernando had
executed the Extrajudicial Partition of
November 25, 1949 (Exh. A) which divided the
conjugal properties of the spouses between the
spouses themselves and the children under the
terms and conditions and dispositions herein
before stated and to implement its provisions,
Don Jesus and Doñ;a Tinay subsequently
executed separately their respective
holographic wigs both dated January 5, 1955
and codicils dated August 14, 1956 with the
same terms and conditions as reproduced
herein earlier. Both holographic wills and
codicils having been probated thereafter and
upon the death of Doñ;a Tinay, Don Jesus was
appointed executor of the will and in due time
the partition of the properties or estate of Doñ;a
Tinay was approved by the probate court on
July 6, 1960.
The respondent court ruled that the
Extrajudicial Partition of November 25, 1949
was an enforceable contract which was binding
on Don Jesus Alsua as the surviving spouse,
barring him from violating said partition
agreement, barring him from revoking his
holographic will of January 5, 1955 and his
codicil of August 14, 1956, and further barring
him from executing his new will and testament
of November 14, 1959, now the subject of the
probate proceedings elevated to this Court.
We do not agree with this ruling of the
Court of Appeals. We hold that the Extrajudicial
Partition of November 25, 1949 is null and void
under Article 1056 in relation to Article 1271 of
the old Civil Code which are applicable hereto.
These Articles provide as follows: têñ.£îhqwâ£
Art. 1056. If the testator should
make a partition of his property
by an act inter vivos, or by will,
such partition shall stand in so far
as it does not prejudice the
legitime of the forced heirs. ...
Art. 1271. All things, even future
ones, which are not excluded
from the commerce of man, may
be the subject-matter of
contracts.
Nevertheless, no contract may be
entered into with respect to future
inheritances, except those the
object of which is to make a
division inter vivos of an estate, in
accordance with Article 1056.
All services not contrary to law or
to good morals may also be the
subject- matter of contract.
Article 1056 specifically uses the word
"testator" from which the clear intent of the law
may be deduced that the privilege of
partitioning one's estate by acts inter vivos is
restricted only to one who has made a prior will
or testament. In other words, Article 1056
being an exception cannot be given a wider
scope as to include in the exception any
person whether he has made a will or not.
Respondent court citing the same Article
concluded that under both the old and new
Civil Code, a person who executes a will is
permitted at the same time or a little thereafter
or even before as long as he mentions this fact
in the will, to partition his properties pursuant to
the provisions of Article 1056 of the old Civil
Code. The court further added that
jurisprudence is to the effect that the partition
presupposes the execution of the will that it
ratifies or effectuates, citing the case
of Legasto vs. Verzosa, 54 Phil. 776. Finally,
respondent court held the opinion that the
extrajudicial partition of November 14, 1949
was ratified in the holographic will executed by
Don Jesus on Jan. 5, 1955 and in the codicil of
August 14, 1956.
Again, We do not agree with this ruling
of the respondent court. In Legasto vs.
Verzosa, supra, the Supreme Court
categorically declared the necessity of a prior
will before the testator can partition his
properties among his heirs, and We quote the
pertinent portions of the decision: têñ.£îhqwâ£
The first question to decide in the instant
appeal is whether the partition made by
Sabina Almadin of her property among
her nieces, the defendants and
appellants herein, was valid and
enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a
partition of his property by an act inter
vivos, or by will, such partition shall
stand in so far as it does not prejudice
the legitime of the forced heirs.
The Supreme Court of Spain, in a
decision rendered on June 13, 1903,
laid down the following doctrine:
Considering that the language of article
1056 cannot be interpreted to mean that
a person may, by acts inter vivos,
partition his property referred to in the
section wherein said article is found,
without the authority of a testament
containing an expression of his last will,
or the authority of law, for, otherwise, a
28
partition thus made would be
tantamount to making a will in a manner
Page
not provided for, authorized, nor
included in the chapter referring to
testaments, and especially, to the forms
thereof, which is entirely different from
the legal consequences of a free
disposition made by parents during their
lifetime, whereby they give to their
children the whole or a part of their
property;
Considering that, inasmuch as the
second paragraph of article 1271 makes
reference to the aforesaid article, in
providing that no contracts may be
entered into with respect to future
inheritances except those the object of
which is to make a division inter vivos of
the estate in accordance with article
1056, it is evident that said difference
likewise leads to the conclusion that a
partition thus made should be on the
basis of a testamentary or legal
succession and should be made in
conformity with the fundamental rules
thereof and the order of the heirs
entitled to the estate, because neither of
the two provisions could be given a
wider meaning or scope than that they
simply provide for the division of the
estate during the lifetime of the owner,
which, otherwise, would have to be
done upon the death of the testator in
order to carry into effect the partition of
the estate among the persons
interested.
Manresa comments on the same article
as follows:
A distinction must be made between the
disposition of property and its division;
and the provision of article 1056
authorizing the testator to dispose of his
property by acts inter vivos or by last
will, must be understood in accordance
with this distinction. The Idea is to divide
the estate among the heirs designated
by the testator. This designation
constitutes the disposition of the
properties to take effect after his death,
and said act must necessarily appear in
the testament because it is the
expression of the testator's last will and
must be surrounded by appropriate
formalities. Then comes the second
part, to wit, the division in conformity
with that disposition, and the testator
may make this division in the same will
or in another will, or by an act inter
vivos. With these words, the law, in
article 1056 as well as in article 1057,
which we shall hereafter examine,
makes allusion to the forms or manner
of making the partition and not to the
effects thereof, which means that, for
purposes of partition the formal
solemnities which must accompany
every testament or last will are not
necessary. Neither is it necessary to
observe the special for. realities
required in case of donations, because it
is not a matter of disposing gratuitously
of properties, but of dividing those which
already have been legally disposed of.
It is thus seen that both the Spanish
Supreme Court and the learned and
authoritative commentator, Manresa,
are of opinion that a testator may, by an
act inter vivos, partition his property, but
he must first make a will with all the
formalities provided for by law. And it
could not be otherwise, for without a will
there can be no testator; when the law,
therefore, speaks of the partition inter
vivos made by a testator of his property,
it necessarily refers to that property
which he has devised to his heirs. A
person who disposes of his property
gratis inter vivos is not called a testator,
but a donor. In employing the word
"testator," the law evidently desired to
distinguish between one who freely
donates his property in life and one who
disposes of it by will to take effect after
his death.
We are not in conformity with the
holding of the respondent court that the
extrajudicial partition of November 25, 1949
which under the old Civil Code was expressly
prohibited as against public policy had been
validly ratified by the holographic will of Don
Jesus executed on January 5, 1955 and his
codicil of August 14, 1956. Such a holding of
the appellate court that a person who executes
a will is permitted to partition his properties
pursuant to the provisions of Article 1056 of the
old Civil Code even before executing his will as
long as he mentions this fact in the will, is not
warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of
Manresa as quoted above. We rule, therefore,
that the respondent court erred in denying
probate to the will of Don Jesus dated
November 14, 1959; it erred in holding that
Don Jesus being a party to the extrajudicial
partition of 1949 was contractually bound by
the provisions thereof and hence could not
revoke his participation therein by the simple
expedience of making a new will with contrary
provisions or dispositions. It is an error
because the so-called extrajudicial partition of
1949 is void and inoperative as a partition;
29
neither is it a valid or enforceable contract
because it involved future inheritance; it may
Page
only be given effect as a donation inter vivos of
specific properties to the heirs made by the
parents.
Considering that the document, the
extrajudicial partition of November 25, 1949,
contained specific designation of properties
allotted to each child, We rule that there was
substantial compliance with the rules on
donations inter vivos under the old Civil Code
(Article 633). On the other hand, there could
have been no valid donation to the children of
the other half reserved as the free portion of
Don Jesus and Doñ;a Tinay which, as stated in
the deed, was to be divided equally among the
children for the simple reason that the property
or properties were not specifically described in
the public instrument, an essential requirement
under Article 633 which provides as
follows: têñ.£îhqwâ£
Art. 633. In order that a donation
or real property be valid it must
be made by public instrument in
which the property donated must
be specifically described and in
the amount of the encumbrances
to be assumed by the donee
expressed.
The acceptance must be made in
the deed of gift or in a separate
public writing; but it shall produce
no effect if not made during the
lifetime of the donor.
If the acceptance is made by
separate public instrument,
authentic notice thereof shall be
given the donor, and this
proceeding shall be noted in both
instruments.
This other half, therefore, remained as
the disposable free portion of the spouses
which may be disposed of in such manner that
either of the spouses would like in regards to
his or her share in such portion, unencumbered
by the provision enjoining the last surviving
spouse to give equally to the children what
belongs or-would pertain to him or her. The
end result, therefore, is that Don Jesus and
Doñ;a Tinay, in the Deed of 1949, made to
their children valid donations of only one-half of
their combined properties which must be
charged against their legitime and cannot
anymore be revoked unless inofficious; the
other half remained entirely at the free disposal
of the spouses with regards to their respective
shares.
Upon the death of Doñ;a Tinay on
October 2, 1959, her share in the free portion
was distributed in accordance with her
holographic will dated January 25, 1955 and
her codicil dated August 14, 1956. It must be
stressed here that the distribution of her
properties was subject to her holographic win
and codicil, independently of the holographic
will and codicil of Don Jesus executed by him
on the same date. This is fundamental
because otherwise, to consider both wills and
codicils jointly would be to circumvent the
prohibition of the Civil Code on joint wills (Art.
818) and secondly because upon the death of
Doñ;a Tinay, only her estate was being settled,
and not that of Don Jesus.
We have carefully examined the
provisions of the holographic will and codicil of
Doñ;a Tinay and We find no indication
whatsoever that Doñ;a Tinay expressly or
impliedly instituted both the husband and her
children as heirs to her free portion of her
share in the conjugal assets. In her holographic
will, mention of her children as heirs was made
in the fourth clause but it only provided that, to
wit: têñ.£îhqwâ£
Cuatro. Que si yo adquieriese
nuevase propiedades despues
de otorgado este mi testamento
seran las mismas repartados
entre mi esposo o hijos arriba
mencionada en el parrafo tercero
su la misma proporcion o sea: la
mitad (1/2) para is esposa; y la
otra mitad (1/2) para mis hijos en
partes iguales.
For purposes of clarity and convenience, this
fourth clause provided that "Should I acquire
new properties after the execution of this
testament, the same shall be partitioned
among my spouse and above named children
or the children mentioned in above par. 3 in the
same proportion, that is, one- half (1/2) to my
spouse; and the other half to my children in
equal parts." From the above-quoted provision,
the children would only inherit together with
Don Jesus whatever new properties Doñ;a
Tinay would acquire after the execution of her
will.
Likewise, the codicil of Doñ;a Tinay
instituted her husband as sole heir to her share
in the free portion of the conjugal assets, and
We quote that part of the codicil: têñ.£îhqwâ£
Dejo a mi esposo Jesus Alsua
como su legitima y como
herencia que se sacara de ni
cuenta de libre disposicion todos
aquellos bienes de los que no he
dispuesto aun en favor de mis
hijos en la escritura de reparticion
precitada y que excedieran de la
mitad de gananciales que le
corresponds tal como arriba
declare, incluyendo todos
aquenos bienes que se
30
adquiriesen por nosotros
Page
 despues de otorgado por mi este
testamento.
Para el caso de que Dios
dispusiera que yo sobreviviera a
mi esposo declaro que es mi
voluntad que todas las
propiedades de todo genero que
me pertenecen y me pudieran
pertenecer, no dispuestas aun en
la reparticion, se dividan por igual
entre mis herederos
mencionados despues de mi
muerte.
Again for purposes of clarity and convenience,
the above portion states: têñ.£îhqwâ£
I leave to my spouse Don Jesus
Alsua as his legitime and as his
inheritance the part of the free
portion of my property which
have not been allocated in favor
of my children in the Document of
Partition aforecited and that
which should exceed 1/2 of the
conjugal property of gains that
pertains to him as above stated,
including all those properties
which we shall acquire after the
execution of this document.
In case it should be God's will
that I survive my spouse, I hereby
declare that it is my will that any
and all kinds of property that
pertains to me or would pertain to
me, which have not been
disposed of pursuant to the
partition, should be divided
equally among my above-
mentioned heirs after my death.
The children, therefore, would only receive
equal shares in the remaining estate of Doñ;a
Tinay in the event that she should be the
surviving spouse. To stress the point, Doñ;a
Tinay did not oblige her husband to give
equally to the children, upon his death, all such
properties she was bequeathing him.
Considering now the efficacy of Don
Jesus' last will and testament executed on
November 14, 1959 in view of Our holding that
Doñ;a Tinay's wig and codicil did not stipulate
that Don Jesus will bestow the properties
equally to the children, it follows that all the
properties of Doñ;a Tinay bequeathed to Don
Jesus under her holographic win and codicil
became part of Don Jesus' estate unburdened
by any condition obligation or proviso.
Respondents insist that Don Jesus was
bound by the extrajudicial partition of
November 25, 1949 and had in fact conformed
to said Partition by making a holographic will
and codicil with exactly the same provisions as
those of Doñ;a Tinay, which respondent court
sustained. We rule, however, that Don Jesus
was not forever bound thereby for his previous
holographic will and codicil as such, would
remain revokable at his discretion. Art. 828 of
the new Civil Code is clear: "A win may be
revoked by the testator at any time before his
death. Any waiver or restriction of this right is
void." There can be no restriction that may be
made on his absolute freedom to revoke his
holographic will and codicil previously made.
This would still hold true even if such previous
will had as in the case at bar already been
probated (Palacios v. Palacios, 106 Phil. 739).
For in the first place, probate only
authenticates the will and does not pass upon
the efficacy of the dispositions therein. And
secondly, the rights to the succession are
transmitted only from the moment of the death
of the decedent (Article 777, New Civil Code).
In fine, Don Jesus retained the liberty of
disposing of his property before his death to
whomsoever he chose, provided the legitime of
the forced heirs are not prejudiced, which is not
herein claimed for it is undisputed that only the
free portion of the whole Alsua estate is being
contested.
After clearly establishing that only Don
Jesus was named as sole heir instituted to the
remaining estate of Doñ;a Tinay in her
holographic will and codicil resulting in all such
properties becoming the properties of Don
Jesus alone, and after clearly pointing out that
Don Jesus can, in law, revoke his previous
holographic will and codicil, by making another
win expressly cancelling and revoking the
former, the next issue for the Court's resolution
is the validity of the provisions of the contested
will. Though the law and jurisprudence are
clear that only questions about the extrinsic
validity of the will may be entertained by the
probate court, the Court had, on more than one
occasion, passed upon the intrinsic validity of a
will even before it had been authenticated.
Thus We declared inNuguid v. Nuguid, 17
SCRA 499: têñ.£îhqwâ£
The parties shunted aside the
question of whether or not the will
should be allowed to probate. For
them, the meat of the case is the
intrinsic validity of the wilt
Normally this comes only after
the court has declared that the
will has been duly authenticated.
...
... If the case were to be
remanded for probate of the wilt
nothing will be gained. On the
contrary, this litigation win be
protracted and for ought that
31
appears in the record, in the
event of probate or if the court
Page
 rejects the will probability exists
that the case win come up once
again before us on the issue of
the intrinsic validity or nullity of
the wilt Result: waste of time,
effort, expense, plus added
anxiety. These are the practical
considerations that induce us to a
behalf that we might as well meet
head-on the time of the validity of
the provisions of the will in
question. ...
The last Will and Testament of Don Jesus
executed on November 14, 1959 contained an
express revocation of his holographic wig of
January 5, 1955 and the codicil of August 14,
1956; a statement requiring that all of his
properties donated to his children in the Deed
of 1949 be collated and taken into account in
the partition of his estate; the institution of all
his children as devisees and legatees to
certain specific properties; a statement
bequeathing the rest of his properties and all
that may be acquired in the future, before his
death, to Pablo and Francesca; and a
statement naming Francesca as executrix
without bond.
Considering these testamentary provisions, a
close scrutiny of the properties distributed to
the children under the Deed of 1949 and those
distributed under the contested will of Don
Jesus does not show that the former had in
fact been included in the latter. This being so, it
must be presumed that the intention of Don
Jesus in his last win was not to revoke the
donations already made in the Deed of 1949
but only to redistribute his remaining estate, or
that portion of the conjugal assets totally left to
his free disposal and that which he received as
his inheritance from Doñ;a Tinay. The legitimes
of the forced heirs were left unimpaired, as in
fact, not one of said forced heirs claimed or
intimated otherwise. The properties that were
disposed of in the contested will belonged
wholly to Don Jesus Alsua's free portion and
may be diamond of by him to whomsoever he
may choose.
If he now favored Francesca more, as
claimed by private respondents, or Pablo as in
fact he was, We cannot and may not sit in
judgment upon the motives and sentiments of
Don Jesus in doing so. We have clearly laid
down this rule in Bustamante v. Arevalo, 73
Phil. 635, to wit: têñ.£îhqwâ£
... nevertheless it would be venturesome
for the court to advance its own Idea of
a just distribution of the property in the
face of a different mode of disposition so
clearly expressed by the testatrix in the
latter will. ...
It would be a dangerous precedent to
strain the interpretation of a will in order
to effect what the court believes to be an
equitable division of the estate of a
deceased person. The only functions of
the courts in these cases is to carry out
the intention of the deceased as
manifested in the wig. Once that
intention has been determined through a
careful reading of the will or wills, and
provided the law on legitimes has not
been violated, it is beyond the place of
judicial cognizance to inquire into the
fairness or unfairness of any devise or
bequeast. The court should not sit in
judgment upon the motives and
sentiments of the testatrix, first, because
as already stated, nothing in the law
restrained her from disposing of her
property in any manner she desired, and
secondly, because there are no
adequate means of ascertaining the
inward process of her conscience. She
was the sole judge of her own attitude
toward those who expected her bounty.
...
Respondent court, in trying to rationalize the
will of Don Jesus which allegedly benefited and
favored the petitioner to the prejudice of the
other heirs who would have been entitled to an
equal share under the extrajudicial partition of
1949, faced two alternatives-one, to consider
Don Jesus as a man of culture and honor and
would not snow himself to violate the previous
agreement, and the other as one whose mental
faculties or his possession of the same had
been diminished considering that when the will
was executed, he was already 84 years of age
and in view of his weakness and advanced
age, the actual administration of his properties
had been left to his assistant Madarieta who,
for his part received instructions from
Francisco and her husband, Joseph Betts.
According to the court, the better explanation is
the latter, which is not legally tenable. Under
Article 799 of the New Civil Code which
provides as follows: têñ.£îhqwâ£
Art. 799. To be of sound mind, it
is not necessary that the testator
be in full possession of all his
reasoning faculties, or that his
mind be wholly unbroken,
unimpaired, or unshattered by
disease, injury or other cause.
It shall be sufficient if the testator
was able at the time of making
the will to know the nature of the
estate to be disposed of, the
proper objects of his bounty, and
32
the character of the testamentary
act,
Page
The test of testamentary capacity is at the time
of the making of the win. Mere weakness of
mind or partial imbecility from disease of body
or from age-does not render a person
incapable of making a will. têñ.£îhqwâ£
Between the highest degree of
soundness of mind and memory
which unquestionably carries with
it full testamentary capacity, and
that degrees of mental aberration
generally known as insanity or
Idiocy, there are numberless
degrees of mental capacity or
incapacity and while on one hand
it has been held that mere
weakness of mind, or partial
imbecility from disease of body,
or from age, will not render a
person incapable of making a
will; a weak or feebleminded
person may make a valid will,
provided he has understanding
and memory sufficient to enable
him to know what he is about to
do and how or to whom he is
disposing of his property. To
constitute a sound and disposing
mind, it is not necessary that the
mind be unbroken or unimpaired
or unshattered by disease or
otherwise. It has been held that
testamentary incapacity does not
necessarily require that a person
shall actually be insane or of
unsound mind. (Bugnao vs.
Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798
that in order to make a will, it is essential that
the testator be of sound mind at the time of its
execution, and under Article 800, the law
presumes that every person is of sound mind
in the absence of proof to the contrary. In the
case at bar, the acceptance by the respondent
court of the findings of fact of the trial court on
the due execution of the last win and testament
of Don Jesus has foreclosed any and all claim
to the contrary that the will was not executed in
accordance with the requirements of the law.
But more than that, gleaned from the quoted
portions of the appealed decision, the
described behavior of Don Jesus is not that of
a mentally incapacitated person nor one
suffering from "senile dementia" as claimed by
private respondents. From these accepted
facts, We find that: (a) it was Don Jesus
himself who gave detailed instructions to his
lawyer as to how he wanted to divide his
properties among his children by means of a
list of his properties should pertain; (b) the
semi-final draft of the contested will prepared
by his lawyer w-as even corrected by Don
Jesus; (c) on the day of the signing of the will
at his house in Ligao, "Don Jesus was in bright
and lively spirits ..., leading in the conversation
which ran from problems of farming and the
merits of French-made wines"; (d) the signing
of the will by Don Jesus and his attesting
witnesses was made after a statement from
Don Jesus of the purpose of their meeting or
gathering, to wit: têñ.£îhqwâ£
Precisamente es por lo que he
Ilamado a ustedes que eaten
presentes para ser testigos de mi
ultima voluntad y testamento que
ha sido preparado por el
abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo
documents tengo aqui con migo y
encuentro que, despues de lo he
leido, esta satisfactoriamente
hecho segun mis ingtrucciones,
Como saben ustedes tengo
cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his
actions were and the fun implications thereof.
In rejecting probate of the wilt respondent court
further pointed out other details which, in the
words of the decision "are a little bit difficult to
reconcile with the ordinary course of things and
of fife" such as the fact that Don Jesus had
sought the probate of his will of January 5,
1955 and his codicil of August 14, 1956 during
his lifetime but insofar as the will of November
14, 1959 is concerned, he had no intention of
seeking the probate thereof during his lifetime,
the alleged redundant and unnecessary
proceedings undertaken by Don Jesus in the
properties under question to petitioner Franciso
Alsua-Betts when the same properties had
already been bequeathed to her in the will of
November 14, 1959 and that "nothing,
absolutely nothing, could be made the basis for
finding that Don Jesus Alsua had regarded his
other children with less favor, and that he was
more sympathetic to Francisca so as to or
forget the former depriving them of benefits
already given to them and rewarding the latter
with disproportionate advantages or benefits,
to such an extreme as to violate his previous
disposition consecrated in the previous
extrajudicial partition, Exh. 8."
We agree with the petitioner that these
details which respondent court found difficult to
reconcile with the ordinary course of things and
of life are mere conjectures, surmises or
speculations which, however, do not warrant or
justify disallowance of the probate of the win of
Don Jesus. The fact that Don Jesus did not
cause his will to be probated during his lifetime
while his previous holographic win and codicil
33
were duly probated when he was still alive is a
mere speculation which depends entirely on
Page
the discretion of Don Jesus as the testator. The
law does not require that a will be probated
during the lifetime of the testator and for not
doing so there cannot arise any favorable or
unfavorable consequence therefrom. The
parties cannot correctly guess or surmise the
motives of the testator and neither can the
courts. Such surmise, speculation or
conjecture is no valid and legal ground to reject
allowance or disallowance of the wig. The
same thing can be said as to whatever reason
Don Jesus had for selling the properties to his
daughter Francisca when he had already
assigned the same properties to her in his will.
While We can speculate that Don Jesus
desired to have possession of the properties
transferred to Francisca after the sale instead
of waiting for his death may be a reasonable
explanation or speculation for the act of the
testator and yet there is no certainty that such
was actually the reason. This is as good a
conjecture as the respondents may offer or as
difficult to accept which respondent court
believes. A conjecture is always a conjecture; it
can never be admitted as evidence.
Now, the annulment case. The only
issue raised anent the civil case for annulment
of the two Deeds of Sale executed by and
between Don Jesus and petitioner Francisco is
their validity or nullity. Private respondents
mainly contend that the sales were fictitious or
simulated, there having been no actual
consideration paid. They further insist that the
issue raised is a question of fact and,
therefore, not reviewable in a certiorari
proceeding before the Supreme Court. On the
other hand, petitioners herein maintain that it
was error for the respondent court to set aside
on appeal the factual findings of the trial court
that the two sales were valid.
It is true that the jurisprudence of this
Court in cases brought to Us from the Court of
Appeals is limited to reviewing and revising the
errors of law imputed to it, its findings of fact
being conclusive; and this same principle
applies even if the Court of Appeals was in
disagreement with the lower court as to the
weight of evidence with a consequent reversal
of its findings of fact. But what should not be
ignored by lawyers and litigants alike is the
more basic principle that the "findings of fact"
described as "final" or "conclusive" are those
borne out by the record or those which are
based upon substantial evidence. The general
rule laid down by the Supreme Court does not
declare the absolute correctness of all the
findings of fact made by the Court of Appeals.
These are exceptions to the general rule,
where We have reviewed and revised the
findings of fact of the Court of Appeals. Among
the exceptions to the rule that findings of fact
by the Court of Appeals cannot be reviewed on
appeals by certiorari are:
1. When the conclusion is a finding grounded
entirely on speculation, surmises or
conjectures (Joaquin vs. Navarro, 93 Phil.
257);
2. When the inference made is manifestly
mistaken, absurd or impossible (Luna vs.
Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion
(Buyco vs. People, 51 O.G. 2927);
4. When the judgment is based on a
misapprehension of facts (Cruz vs. Sosing, L-
4875, Nov. 27, 1953);
5. When the findings of fact are conflicting
(Casica vs. Villaseca, L-9590, April 30, 1957);
and
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 (Evangelists vs.
Alto Surety & Ins. Co., L-11139, April 23, 1958;
Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967,
19 SCRA 289).
In the case at bar, We find and so
declare that the respondent court's conclusion
as to the nullity of the contested sales was not
supported by the evidence on record and
adduced during the trial.
Evident from the records are the
following documentary evidence: (1) Exhibit U,
a deed of sale over agricultural lands executed
on August 26, 1961 by Don Jesus in favor of
Francisca for the consideration of Seventy
Thousand Pesos (P70,000.00), which
document bears the signature of Don Jesus,
not assailed as a forgery, and the signature of
Pablo Alsua as an instrumental witness, again
not assailed as a forgery nor alleged as done
thru fraud, force or threat. (2) Exhibit "W", a
deed of sale over urban lots executed on
November 16, 1962 for the consideration of
Eighty Thousand Pesos (P80,000.00), which
document also bears the signature of Don
Jesus, also admittedly not a forgery. (3) Exhibit
"F", a document dated August 26, 1961 and
signed by Don Jesus and Pablo Alsua as
witness, acknowledging receipt of a Bank of
Philippine Island Check No. 0252 in the
amount of Seventy Thousand Pesos
(P70,000.00) for the sale of 33 parcels of
agricultural land to Francisco under the same
date; again, Pablo did not deny the
genuineness of his signature. (4) Exhibit "X", a
Bank of the Philippine Islands Check No. D-
6979 dated November 26, 1962, in the amount
of P32,644.71, drawn and signed by
Francesca, payable to Don Jesus. (5) Exhibit
34
"X-1", a second Bank of Philippine Islands
Check (No. D-6980) also dated November 26,
Page
1962 in the amount of ?47,355.29, drawn by properties and considering that the sales were
Francisco and payable to Don Jesus. (6) effected by a father to her daughter in which
Exhibit "X-3 " and "X-5 ", endorsements on the case filial love must be taken into account.
back of the last two checks by Don Jesus,
again, his signatures thereon were not WHEREFORE, IN VIEW OF THE
assailed. (7) Exhibit "A" (in the annulment FOREGOING, the decision appealed from is
case), a Bureau of Internal Revenue Receipt hereby set aside. The decision of the Court of
(No. 2347260) dated November 29, 1962 with First Instance Of Albay in Special Proceedings
a notation acknowledging the receipt of BPI No. 699 and Civil Case No. 3068 is hereby
Check No. D-6980 in the amount of reinstated, with costs against respondents.
P47,355.29 from Don Jesus Alsua in payment
of Balance of Transfer of Tax Ass. No. EA- SO ORDERED.
35415-19 plus interest. We are convinced and
satisfied from this array of documentary
evidence that in fact, Don Jesus sold the
subject properties to his daughter, Francisca
for the total consideration of P150,000.00.
The claim of the private respondents
that the sales were fictitious and void for being
without cause or consideration is as weak and
flimsy as the ground upon which the
respondent court upheld said claim on the
basis that there was no need for funds in Don
Jesus' old age aside from the speculation that
there was nothing in the evidence that showed
what motivated Don Jesus to change his mind
as to favor Francesca and discriminate against
the other children. The two contracts of same
executed by Don Jesus in favor of Francesca
are evidenced by Exhibits "U" and "W", the
genuineness of which were not at all assailed
at any time during this long drawn-out litigation
of 15 years standing. That the consideration
stated in the contracts were paid is also
sufficiently proved as the receipts thereof by
Don Jesus were even signed by one of the
private respondents, Pablo Alsua, as a
witness. The latter cannot now deny the
payment of the consideration And even of he
now allege that in fact no transfer of money
was involved, We find his allegation belied by
Exhibits "X-3 " and "X-5 ", which show that the
checks of Francisco made payable to Don
Jesus. were in fact given to Don Jesus as he
endorsed them on the back thereof, and most
specifically Exhibit "A" in the annulment case,
which proved that Don Jesus actually used
Exhibit "XI " to complete payment on the estate
and inheritance tax on the estate of his wife to
the Bureau of Internal Revenue.
Private respondents further insist that
the sales were fraudulent because of the
inadequacy of the given price. Inadequacy of
consideration does not vitiate a contract unless
it is proven which in the case at bar was not,
that there was fraud, mistake or undue
influence. (Article 1355, New Civil Code). We
do not find the stipulated price as so
inadequate to shock the court's conscience,
35

considering that the price paid was much

higher than the assessed value of the subject
Page
G.R. No. L-6322 February 21, 1912

DOLORES AVELINO, as administratrix of

the estate of Pascual de la Cruz, Plaintiff-
Appellee, vs. VICTORIANA DE LA
CRUZ, Defendant-Appellant.

JOHNSON, J. : al law library

The present is an appeal from an order

of the Honorable George N. Hurd, judge of the
Court of First Instance of the city of Manila, in
which he had legalized the will of the said
Pascual de la Cruz, deceased. l law library
The contention of the opponent is that at
the time of the making of the will the said
Pascual de la Cruz was blind and had been for
a number of years, and was incompetent to
make the will in question.
Against this contention of the opponent,
all of the witnesses who signed the will were
called as witnesses, and each declared that
the deceased was of sound mind at the time
said will was made and fully understood its
contents and signed the same in their
presence and that they each signed the will in
the presence of each other, as well as in the
presence of the deceased.
The appellant attempted to show that
the deceased was incompetent to make his will
because he was blind at the time the same
was executed and had been for several years
theretofore. There is absolutely no proof to
show that the deceased was incapacitated at
the time he executed his will. No presumption
of incapacity can arise from the mere fact that
he was blind. The only requirement of the law
as to the capacity to make a will is that the
person shall be of age and of sound mind and
memory. (Sec. 614, Code of Procedure in Civil
Actions.) Section 620 of the same code
prohibits blind persons from acting as
witnesses in the execution of wills, but no
limitation is placed upon the testamentary
capacity, except age and soundness of mind.
In our opinion the record contains
nothing which justifies the modification of the
order made legalizing the will in the present
case. The order of the lower court admitting to
probate and legalizing the will in question is
therefore hereby affirmed with costs.
36
Page
[G.R. No. L-17627. June 8, 1922. ] was of sound mind; that he dictated his will in
In re will of Marcelo Jocson, deceased.
RAFAEL JOCSON ET AL., Petitioners-
Appellees, v. ROSAURO JOCSON ET AL.,
opponents-appellants.
Araneta & Zaragoza for Appellants.
M. Fernandez Yanson, Pio Sian Melliza and
Montinola Montinola & Hontiveros
for Appellees.
SYLLABUS
1. EVIDENCE; ATTESTING WITNESSES;
UNIMPORTANT CONTRADICTIONS. — The
contradictions of the witnesses to a will in their
testimony as to certain details of an
unimportant incident are not sufficient to raise
any doubt as to the truth and veracity of their
testimony.
2. WILLS; MENTAL CAPACITY TO MAKE A
WILL. — To constitute a sound mind and
disposing memory, it is not necessary that the
mind shall be wholly unbroken and unimpaired
by disease or otherwise, or that the testator be
in full possession of all his reasoning faculties.
Failure of memory is not sufficient unless it be
total or extends to his immediate family or
property.
DECISION
VILLAMOR, J. :
On June 10, 1920, Rafael Jocson, Cirilo
Manlaque, and Filomena Goza presented a
petition in the court below for the probate of the
document
Exhibit A, as the last will and testament of the
deceased Marcelo Jocson. This petition was
opposed by Rosauro, Asuncion, and Dominga
Jocson, alleging that : (a) The supposed will
was not the last will of the deceased, and the
signatures appearing thereon, and which are
said to be of the testator, are not authentic; (b)
the testator, that is, the deceased, was not of
sound mind and was seriously ill at the time of
its execution; and (c) the supposed will was not
executed in accordance with the law.
After trial the lower court rendered decision
finding, among other things, as
follows:jgc:chanrobles.com.ph
"For all of the foregoing reasons the court finds
that some hours before, during and one hour
after, the execution of his will, Marcelo Jocson
Visaya, his own dialect; that he signed his will
in the presence of three witnesses at the
bottom, and on each of the left margins of the
three sheets in which it was written; that said
three witnesses signed the will in the presence
of the testator and of each other, all of which
requirements make the document Exhibit A a
valid will, in accordance with the provision of
section 618 of the Code of Civil Procedure, as
amended by Act No. 2645.
"By virtue thereof, it is adjudged and decreed
that the document Exhibit A is the last will and
testament of the deceased Marcelo Jocson,
and it is ordered that the same be admitted to
probate, and Rafael Jocson is hereby
appointed administrator of the estate left by
said deceased, upon the filing of a bond in the
sum of fifteen thousand pesos
(P15,000)."cralaw virtua1aw library
The appellants allege that the trial court erred
in holding that Exhibit A is the last will and
testament of the deceased Marcelo Jocson,
and in ordering and decreeing the probate
thereof as his last will.
All the arguments advanced by the appellants
tend to show that the testator Marcelo Jocson,
at the time of executing the will, did not have
the mental capacity necessary therefor; that
said will was not signed by the witnesses in the
presence of the testator; that the witnesses did
not sign the will in the presence of each other,
and that the attestation of the supposed will
does not state that the witnesses signed in the
presence of the testator.
All of these points raised by the appellants
were discussed at length by the trial court upon
the evidence introduced by the parties. After an
examination of said evidence, we are of the
opinion, and so hold, that the findings made by
the trial court upon the aforesaid points are
supported by the preponderance of evidence.
We have noticed certain conflicts between the
declaration of the witnesses on some details
prior to, and simultaneous with, the execution
of the will, but to our mind such discrepancies
are not sufficient to raise any doubt as to the
veracity of their testimony. In the case of
Bugnao v. Ubag (14 Phil., 163), it was
held:jgc:chanrobles.com.ph
"While a number of contradictions in the
testimony of alleged subscribing witnesses to a
will as to the circumstances under which it was
37
executed, or a single contradiction as to a
particular incident to which the attention of
Page
such witnesses must have been directed, may
in certain cases justify the conclusion that the
alleged witnesses were not present, together,
at the time when the alleged will was executed,
a mere lapse of memory on the part of one of
these witnesses as to the precise details of an
unimportant incident, to which his attention was
not directed, does not necessarily put in doubt
the truth and veracity of the testimony in
support of the execution of the will." library
As to the mental capacity of the testator at the
time of executing his will, the finding of the trial
court that the testator was of sound mind at the
time of dictating and signing his will is
supported by the evidence. This court, in the
case of Bagtas v. Paguio (22 Phil., 227), held:
which the will was written, into English, says:
"We witnesses, do hereby state that the
document write on each side of the three
sheets of paper was executed, acknowledged,
signed, and published by the testator
abovenamed, Marcelo Jocson, who declared
that it was his last will and testament in our
presence and, at his request and all of us
being present, we signed our names on the
three sheets of paper as witnesses to this will
in the presence of each other." (Translation of
Exhibit A, page 18, documentary evidence.)
The judgment appealed from is affirmed with
the costs against the appellants. So ordered.

"To constitute a sound mind and

disposing memory it is not necessary that the
mind shall be wholly unbroken, unimpaired,
and unshattered by disease or otherwise, or
that the testator be in full possession of all his
reasoning faculties. Failure of memory is not
sufficient unless it be total or extends to his
immediate family or property."cralaw virtua1aw
library

And in Bugnao v. Ubag, supra, it was

declared:jgc:chanrobles.com.ph

"Proof of the existence of all the elements in

the following definition of testamentary
capacity, which has frequently been adopted in
the United States, held sufficient to establish
the existence of such capacity in the absence
of proof of very exceptional circumstances:
’Testamentary capacity is the capacity to
comprehend the nature of the transaction in
which the testator is engaged at the time, to
recollect the property to be disposed of and the
persons who would naturally be supposed to
have claims upon the testator, and to
comprehend the manner in which the
instrument will distribute his property among
the objects of his bounty.’"

Whether or not the witnesses signed the will in

the presence of the testator and whether or not
they signed in the presence of each other, are
questions of fact that must be decided in
accordance with the evidence. The trial judge,
who tried this case and saw and heard the
witnesses while testifying, held that these
solemnities were complied with at the
execution of the will in question and we find no
reason for altering his conclusions.

The objection to the attestation of Exhibit A is

38

groundless if the terms thereof are considered,

which, translated from the Visayan dialect, in
Page
G.R. No. L-41947 January 16, 1936
In re Will of the deceased Silvestra Baron.
VIVENCIO CUYUGAN, petitioner-appellant,
vs.
FAUSTINA BARON and GUILLERMO
BARON, oppositors-appellees.
BUTTE, J.:
This is an appeal from a judgment of the
Court of First Instance of Pampanga denying
all the petition of Vivencio Cuyugan for the
probate of the will of Silvestra Baron.
The petition which was filed on February
1, 1933, recites among other things that
Silvestra Baron died on January 30, 1933. The
death certificate recites that she was eighty-six
years of age and died of heart failure. The
petition further recites that she left an estate
exceeding in value the sum of P80,000 which
she disposed of by will dated December 17,
1932, that she died single without forced heirs.
The will appointed Vivencio Cuyugan,
her nephew, as executor and contains the
following paragraphs which dispose of her
estate:
Que despues de pagados todos los
gastos quese han de ocasioner desde
que me caiga enferma hasta el entiero
de mi cadaver, los bienes y propiedades
que he de dejar se repartiran
buenamente y en partes iguales mis
hermanos Ilamados Guillermo Baron,
con exception de todo el dinero en
metalico y mi casa de materiales fuertes
construida en el barrio del Pilar, San
Fernando, Pampanga que actualmente
habita mi hermano Guillermo Baron,
porque estos los doy de una manera
absoluta como herencia de mi sobrino
Vivencio Cuyugan.
Que a la muerte de mis hermanos
Guillermo y Faustina Baron, todos los
terrenos que en virtud de este test
tamento les dejo en herencia, los doy
herencia a mi so brino VIVENCIO
CUYUGAN, por lo que, encargo y
prohibo a mis citados hermanos
Guillermo y Faustina Baron, que graven
o pongan cualquiera clase de obligacion
sobre los bienes que les dejo en
herencia.
The original of this will is signed "Silestra On"
and the copy is signed "Silestra Baron" (t.s.n.
pp. 170, 171). Both copies are written in the
Pampanga dialect and consist of one sheet
and are witnessed in due form by Vicente
David, Valeriano Silva and Zacarias Nuguid
(known to the testator).
The petition for probate recites:
9. That on the date of the execution of
said will, that is to say, on December 17,
1932, the said testatrix was about 80
years old, more or less, and was found
and disposing mind, and not acting
under duress, menace, fraud, or undue
influence, and was in every respect
competent to dispose of her estate by
will.
The amended oppositions of Guillermo
Baron, brother of the deceased, and Faustina
Baron, sister of the deceased, allege in
substance first, that at the time of the execution
of the alleged will, Silvestra Baron was
mentally and physically incapacitated for the
execution of a will; and, second, that her
signature and alleged consent to the said will
was obtained and the attorney who prepared
the document and the witnesses who affixed
their signatures thereto.
Upon the issues thus drawn by the
pleadings of the judge of the Court of First
Instance, after and extended trial and a full
consideration of the evidence, came to the
following conclusion:
Opinamos que influyeron indebidamente
e impropia mente en la voluntad ya
debilitada de doña Silvestra Baron por
su avanzada edad la presencia de sus
sobrinos Vivencio Cuyugan y Regino
Cuyugan durante el otorgamiento del
Exhibit A; la ausencia de Faustina
Baron impedida de presenciarlo por
algunos soldados de la Constabularia y
el Jefe de Policia Municipal, Zacarias
Nuguid; la oposicion de Regino
Cuyugan a que ella firmase el
documento preparado por el abogado
Narciso declarando que no habia
otorgado testamento el dia anterior a su
translado forzoso a San Fernando para
que no se hisciese firmar documento
analogo y la presencia del cabo Morales
y del algunos otros soldados, no
solamente cuando se otorgo el
testamento, sino cuando ella fue
transladada de casa contra su voluntad
y cuando se le hizo firmar el Exhibit 10,
y por lo tanto, que ella no gozo de una
completa libertad para disponer de sus
bienes en testamento, o con pleno
conocimiento del alcance de su
contendido. Solo asi se explica el que
ella haya dejado toda la propiedad de
sus bienes a sus sobrinos, con quienes
habia estado en pleito, con pretericion
39
de sus hermanos, especialmente de la
Page
 opositora Faustina Baron, con quien
habia conviviendo durante 40 años . . . .
Sentadas las premisas de hecho y de
derecho que an teceden, el Juzgado no
puede menos de llegar a la con ser
legalizado como el testamento y ultima
voluntad de la finada Silvestra Baron.
Cuando existen pruebas suficien tes
para concencer al Juzgado de que se
ha ejercido in fluencia indebida en el
animo de la testadora y que como
resultado de dicha influencia indebida
esta ha otorgado el testamento de la
voluntad de la supuesta testadora sino
de los que sobre ella ejercieron la
influencia indebida.
An instrument purporting to be a will
executed and witnessed in accordance with the
formalities required by the statute is entitled to
the presumption of regularity. But the burden of
the evidence passed to the proponent when
the oppositors submit credible evidence
tending to show that the supposed testator did
not possess testamentary capacity at the time
or that the document was not the free and
voluntary expression of the alleged testator or
that the will, for any other reason, is void in
law. The finding that the will was executed
under due influence or by the fraud of another
presupposes testamentary capacity. In the
present case the learned trial judge refused the
probate of the alleged will on the ground that it
was executed under the due influence of other
persons and we think the record warrants his
findings in this respect. The trial court also
made findings of fact tending to show actual
lack of testamentary capacity of Silvestra
Baron and we have preferred to base our
conclusion on that finding. The testamentary
capacity of Silvestra Baron at the time she
executed the said purported will.
The evidence shows that the same
morning when Silvestra Baron signed the
alleged will she suffered a physical collapse of
such a serious nature that a physician and a
nurse were immediately called in. By reason of
her advanced age and the gravity of her
illness, she was unable to do anything for
herself. Her grandniece, Epifania Sampang,
who reached the house about one hour or so
after the old lady's collapse, telephoned a
message to Vivencio Cuyugan at San
Fernando, some fourteen kilometers distant,
that Silvestra had an attack and was in a
serious condition and requested that a doctor
be sent immediately, Doctor Teopaco and a
nurse arrived at about ten o'clock and treated
the patient with a plaster on her back and ice
packs over her heart and the doctor gave her a
hypodermic injection in the arm. As the doctor
and the nurse were leaving, Vivencio Cuyugan,
with an attorney and three witnesses, entered
the house prepared to obtain the will of
Silvestra Baron. Neither the doctor nor the
nurse were presented as witnesses by the
proponent. Epifania Sampang, admittedly an
intelligent young woman, who was the first to
reach Silvestra Baron and remained
throughout the morning attended to her,
testified that when she reached the house she
found her grandaunt lying in bed, very pale and
unconscious; that she called to her but she did
not answer and only groaned; that her mouth
was twisted and her lower lip swollen. She
went out to call a doctor but all the doctors in
Magalang were out whereupon she telephoned
as stated to San Fernando for a doctor.
The subscribing witnesses stated that it
was their belief that Silvestra understood the
alleged will which she signed, but all of them
admitted that although they were in her house
about two hours not one of them exchanged a
single word of conversation with Silvestra. The
subscribing witness Zacarias Nuguid testified
in part as follows:
P. Desde que los tres abogados Abad
Santos, Silva y David y usted y Vivencio
Cuyugan se acercaron a la cama de la
finada, hasta que tanto ella como
usteded firmaron el testamento, ¿ha
pronunciado ella alguna palabra? ¿ha
dicho ella algo o no? — R. No recuerdo.
P. Pero, por lo que usted recuerda, ¿ha
dicho ella algo o no ha dicho nada? —
R. No recuerdo.
P. ¿Usted ha dicho algo a ella? — R.
Nada.
P. El señor Quirino Abad Santos ¿le ha
dicho algo a ella? — R. Nada. No he
oido.
P. Los otros abogados Silva y David ¿le
han dicho algo ? — R. No he oido.
P. ¿Ella ha dicho algo a cualquiera de
osos tres o a los abogados? — R. No
he oido que dijera algo.
P. Si ella hubiese dicho algo a los
abogados, asi como los abogados
hubieran hablado a ella, usted hubiera
oido porque usted estaba cerca, ¿no es
verdad? — R. Si señor, hubiera podido
oir.
P. Cuando el senor Silva termino de leer
el testamento, ¿dijo algo la vieja? — R.
No he oido que dijera algo.
There is no evidence that Silvestra Baron took
any active part in the preparation of the alleged
will except that when she was asked if she
wished to include her sister Faustina in the will
she said "Yes" in Pampanga. There is no
40
affirmative evidence that she understood the
Page
document when it was read to her. The person In view of the premises, the judgment
who read the will to her testified as follows: appealed from is affirmed with costs against
R. Despues de leido el testamento, tuve the appellant.
que entregarlo a doña Silvestra, y lo
miro algun rato.
P. ¿Y ella, efectivamente, cogio el
testamento de manos de usted? — R.
Lo entregue a sus manos.
P. ¿Y ella lo cogio con sus manos? —
R. Si señor.
P. ¿Y lo tuvo en sus manos leyendo,
mirando? — R. Mirandolo asi.
P. ¿Pero, no lo leia? — R. Lo estuvo
mirando por mucho tiempo asi.

Standing at her bedside was the

attorney with three witnesses and the chief
beneficiary, Vivencio Cuyugan, and yet so far
as this record shows, not a word was
exchanged between any of them and the
suffering old woman. We don't know what drug
the doctor administered but it is clear to us
from the evidence that in her dazed physical
and mental condition she had no adequate
understanding of what she was doing at that
time. She could not even sign her name to the
original will properly or correctly, and when this
defect was noted by one of the astute
subscribing witnesses, he suggested that they
have her sign another copy (t.s.n. page 109)
which was done.
She never saw the alleged will at any
time again prior to her death which occurred
forty-four days later. It was immediately taken
away by an attorney who kept it in his
possession alleging that she had instructed
him to keep it secret. There is, however,
credible evidence in the record that before her
death she had denied to several persons that
she made any will.
This belief on her part that she had not
made any will explains her failure to do any act
of revocation in the forty-four days during
which she lingered in this life. The doctrine that
where the testator has had an opportunity to
revoke his will subsequent to the operation of
an alleged undue influence upon him but
makes no change in it, the courts will consider
this fact as weighing heavily against the
testimony of undue influence, has no
application to cases in which there has been
an initial lack of testamentary capacity. It has
no application, moreover, where from the day
of execution until the death of the testator his
mental condition is such that he cannot judge
the propriety of revoking the will. Nor obviously
does it apply to a case where the alleged
testator harbors the belief that he had not
executed the will in question.
41
Page
 informed the opponent, Maria Calderon, before
[G.R. No. 6625. October 24, 1911.] and after the said will had been signed, that he
had not disposed of the one-half of the house
JUANA CAGUIOA, administratrix of the and lot now mentioned in the third clause, letter
estate of the deceased Emigdio (a), of the said will, because the said testator
Zarate, Petitioner-Appellee, v. MARIA recognized that the house and lot referred to
CALDERON, opponent-appellant. belonged to the said Maria Calderon.

M. Legazpi Florendo, for Appellant.
Pedro Ma. Sison, for Appellee.
SYLLABUS
1. WILLS; UNDUE INFLUENCE; MENTAL
CAPACITY; LAWFUL WILL. — Held: under the
facts stated in the opinion, that the will in
question, was duly and legally authorized by
the deceased, he being of sound mind and
memory, and that the same was not executed
under threats or fear.
D E C I S I
JOHNSON, J.:
It appears from the record that the plaintiff,
upon the 17th of February, 1910, presented a
petition in the Court of First Instance of the
Province of Pangasinan, praying for the
probation of the last will and testament of
Emigdio Zarate, deceased, in conformity with
section 630 of the Code of Procedure in Civil
Actions. The petition was accompanied by the
original will, marked "Exhibit A," of said
Emigdio Zarate.
"Therefore, the opponent prays the court to
annul the will alleged to have been executed
by Emigdio Zarate, and to order that its probate
be disallowed, with the costs against the
petitioner."
After hearing the evidence adduced pro
and con, the lower court reached the following
conclusion:
"It having been proved completely on
the part of the petitioner that the will in question
was executed and signed in entire conformity
with all the requirements and solemnities set
O N out in the Code of Civil Procedure, the court
overrules the opposition, sustains the petition,
admits to probate Exhibit A, holding that the
same is legal in all its parts as the last will and
testament of the deceased Emigdio Zarate."
From that conclusion of the lower court, the
oppositor appealed to this court and made the
following assignments of error:
"I. The court erred in holding that the
deceased, Emigdio Zarate, was in the full
possession of his mental faculties at the time of
the execution of his will.

Due notice of said petition was given in
accordance with law, and the hearing for the
probation of said will was fixed for the 9th of
March, 1910. Later the said hearing was
transferred to the 16th of July, 1910. On the
latter date the said Maria Calderon appeared,
by her attorney, and opposed the probation of
said will upon the following
grounds:jgc:chanrobles.com.ph
"1. That the said Emigdio Zarate was mentally
incapacitated at the time he authorized and
signed his will.
"2. That he executed the said will under illegal
and undue influence or persuasion on the part
of some persons who acted in behalf of the
beneficiaries or heirs.
"3. That the signature of the testator was
obtained by deceit or fraud, for the reason that
it was not his intention that all that was
"II. The court erred in holding that the said
Emigdio Zarate executed his last will and
testament without illegal persuasion or
influence on the part of persons working in
behalf of the heirs.
"III. The court erred in holding that Emigdio
Zarate executed and signed his last will without
fraud and deceit being brought to bear upon
him.
"IV. The court erred in holding that the testator
signed his will in the presence of four
witnesses, Sabino Sandoval, Esteban
Sandoval, George Zarate and Eugenio Zarate,
who, on their part, signed, each of them, in the
presence of the others.
"V. The court erred in holding that it was
proved that the will in question was executed
and signed in conformity with the requirements
and solemnities set out in the Code of Civil
42

recorded in the said instrument should be his Procedure.

will at the time he signed it; for the testator had
Page
"VI. The court erred in holding that the
document Exhibit A, of the petitioner, is legal in
all its parts, as the last will and testament of the
deceased Emigdio Zarate.
"VII. The court erred in rendering judgment in
this matter without waiting for the written
argument of both sides.
"VIII. The court erred in not holding that all the
proof taken together sustained the claim of the
oppositor, Maria Calderon.
"IX. The court erred in imposing the costs upon
the oppositor."
With reference to the first assignment of error
above noted, it appears from the record that
upon the 13th day of January, 1910, Emigdio
Zarate executed his last will and testament, the
original of which appears in the record and is
marked "Exhibit A." Emigdio Zarate died on the
19th day of January, 1910.
From an examination of said Exhibit A it
appears to have been signed by Emigdio
Zarate and by four witnesses, Sabino M.
Sandoval, Esteban Sandoval, George Zarate
and Eugenio Zarate. From the record it
appears that the testator dictated his will in the
Pangasinan dialect and it was then translated
into Spanish. After the will had been written in
Spanish it was read to the deceased and
translated to him in the Pangasinan dialect,
and, according to the allegations of the
appellee, the said Exhibit A received his
approval as his last will and testament.
The appellant alleges that at the time of the
execution of the said alleged will of Emigdio
Zarate, he was not in the full possession of his
mental faculties. This question was presented
to the lower court. After hearing the evidence,
the lower court found that Emigdio Zarate, at
the time of the execution of the said will, was in
the possession of his faculties. Two of the
witnesses who signed the will, as well as
others who were present in the house at the
time the said will was executed, testified that in
their opinion Emigdio Zarate was of sound
mind and memory at the time he signed the
said will. Practically the only testimony to the
contrary adduced during the trial of the cause
in the lower court was the testimony given by
two doctors, one of whom had not seen the
deceased for many months before his death,
whose testimony was based wholly upon
hypothetical questions.
The appellant attempted to show that Emigdio
Zarate for some months prior to his death had
been troubled with insomnia, as well as some
other physical infirmities. The hypothetical
questions were based upon the question
whether or not a person who had been
suffering with insomnia for some months would
have sufficient mental capacity to execute a
will. The two doctors who appeared on behalf
of the opponents testified that insomnia tended
to destroy the mental capacity, but that there
were times, even during the period while they
were suffering from insomnia, when they would
be perfectly rational. Even admitting that there
was some foundation for the supposition that
Emigdio Zarate had suffered from the alleged
infirmities, we do not believe that the testimony
was sufficiently direct and positive, based upon
the hypothetical questions, to overcome the
positive and direct testimony of the witnesses
who were present at the time of the execution
of the will in question. The evidence adduced
during the trial of the case, shows a large
preponderance of proof in favor of the fact that
Emigdio Zarate was in the full possession of
his mental faculties at the time he executed his
last will and testament.
The second and third assignments of error may
be considered together. Upon the question
presented by the said assignments of error, the
lower court found from the evidence that
Emigdio Zarate executed his last will and
testament without threats, force or pressure or
illegal influence. The basis of the claim that
undue influence had been exercised over
Emigdio Zarate is that a day or two before the
said will was made, it is claimed by the
opponent, Maria Calderon, that the deceased
promised to will to her a certain house (one-
half of which seems to belong to her) upon the
payment by her to the deceased of the sum of
P300. The P300 was never paid to the
deceased and the said property was not willed
to the defendant herein. The agreement
between Maria Calderon and the deceased, if
there was an agreement, seems to have been
made between them privately, at least at the
time the will was made the deceased made no
reference to it whatever. Those present at the
time the will was made and the witnesses who
signed the same heard no statement or
conversation relating to the said agreement,
between the opponent herein and the
deceased. There is no proof in the record
which shows that any person even spoke to
the deceased with reference to the willing of
the said house to the opponent. There is
nothing in the record to indicate in the slightest
degree that any person interested in the will, or
who was present at the time of the making of
43
the same, induced or attempted to induce the
deceased not to will the said house to the
Page
opponent herein. The theory of the opponent
that the deceased did not will to her the house
in question is a mere presumption and there is
not a scintilla of evidence in the record to
support it.
that the will of Emigdio Zarate, deceased, was
executed and signed in entire conformity with
all the requirements and solemnities required
by law. Therefore the judgment of the lower
court is hereby affirmed with costs.

The fourth, fifth, and sixth assignments of error

may be considered together.

During the trial of the cause two of the persons

who signed the will as witnesses appeared and
testified. They testified that the deceased
signed the will in their presence and in the
presence of the other witnesses to the will; that
they each signed the will in the presence of the
testator and in the presence of the other
witnesses; that the other two witnesses who
were not called also signed the will in the
presence of the testator and in the presence of
each of the other witnesses. There is no
sufficient proof in the record to overcome the
declarations of these witnesses. We find no
reason, therefore, for modifying the conclusion
of the lower court upon these assignments of
error.

With reference to the seventh assignment of

error, to wit: that the court erred in rendering
judgment without waiting for the written
arguments of both parties, it may be said that it
is customary for courts to wait until the parties
have presented their arguments before
deciding a cause, nevertheless, it is not
reversible error for a court to decide a cause
without waiting for written arguments to be
presented by the respective attorneys. It
appears from the record (p. 102) that the trial
of the cause was closed on the 5th of August,
1910, and that the decision in the cause was
not rendered until the 5th of October, 1910, or
until after two months had expired. There is
nothing in the record which shows that either of
the attorneys during these two months asked
for additional time in which to present their
written arguments. It also appears of record (p.
102) that the respective attorneys asked for
fifteen days’ time within which to present their
written arguments. There is nothing in the
record which shows whether they presented
their written arguments or not. If there was any
fault for not having the written arguments
presented before the decision was rendered in
the cause, it was clearly not the fault of the
judge.

The arguments heretofore given seem to be

sufficient also to answer the eighth and ninth
assignments of error.
44

Upon a full consideration of the evidence and

the assignments of error, we are of the opinion
Page
G.R. No. 6845 September 1, 1914
YAP TUA, petitioner-appellee,
vs.
YAP CA KUAN and YAP CA
KUAN, objectors-appellants.
JOHNSON, J.:
It appears from the record that on the 23d day
of August, 1909, one Perfecto Gabriel,
representing the petitioner, Yap Tua, presented
a petition in the Court of First Instance of the
city of Manila, asking that the will of Tomasa
Elizaga Yap Caong be admitted to probate, as
the last will and testament of Tomasa Elizaga
Yap Caong, deceased. It appears that the said
Tomasa Elizaga Yap Caong died in the city of
Manila on the 11th day of August, 1909.
Accompanying said petition and attached
thereto was the alleged will of the deceased. It
appears that the will was signed by the
deceased, as well as Anselmo Zacarias,
Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given,
was brought on for hearing on the 18th day of
September, 1909. Timoteo Paez declared that
he was 48 years of age; that he had known the
said Tomasa Elizaga Yap Caong; that she had
died on the 11th day of August, 1909; that
before her death she had executed a last will
and testament; that he was present at the time
of the execution of the same; that he had
signed the will as a witness; that Anselmo
Zacarias and Severo Tabora had also signed
said will as witnesses and that they had signed
the will in the presence of the deceased.
Pablo Agustin also declared as a
witness and said that he was 40 years of age;
that he knew Tomasa Elizaga Yap Caong
during her lifetime; that she died on the 11th
day of August, 1909, in the city of Manila; that
before her death she had executed a last will
and testament; that he was present at the time
said last will was executed; that there were
also present Timoteo Paez and Severo Tabora
and a person called Anselmo; that the said
Tomasa Elizaga Yap Caong signed the will in
the presence of the witnesses; that he had
seen her sign the will with his own eyes; that
the witnesses had signed the will in the
presence of the said Tomasa Elizaga Yap
Caong and in the presence of each other; that
the said Tomasa Elizaga Yap Caong signed
the will voluntarily, and in his judgment, she
was in the possession of her faculties; that
there were no threats or intimidation used to
induce her to sign the will; that she signed it
voluntarily.
No further witnesses were called and
there was no further opposition presented to
the legalization of the said will.
After hearing the foregoing witnesses,
the Honorable A. S. Crossfield, judge, on the
29th day of September, 1909, ordered that the
last will and testament of Tomasa Elizaga Yap
Caong be allowed and admitted to probate.
The will was attached to the record and
marked Exhibit A. The court further ordered
that one Yap Tua be appointed as executor of
the will, upon the giving of a bond, the amount
of which was to be fixed later.
From the record it appears that no
further proceedings were had until the 28th of
February, 1910, when Yap Ca Kuan and Yap
Ca Llu appeared and presented a petition,
alleging that they were interested in the
matters of the said will and desired to intervene
and asked that a guardian ad litem be
appointed to represent them in the cause.
On the 1st day of March, 1910, the court
appointed Gabriel La O as guardian ad litem of
said parties. Gabriel La O accepted said
appointment, took the oath of office and
entered upon the performance of his duties as
guardianad litem of said parties. On the 2d day
of March, 1910, the said Gabriel La O
appeared in court and presented a motion in
which he alleged, in substance:
First. That the will dated the 11th day of
August, 1909, and admitted to probate by order
of the court on the 29th day of September,
1909, was null, for the following reasons:
(a) Because the same had not been
authorized nor signed by the witnesses
as the law prescribes.
(b) Because at the time of the execution
of the will, the said Tomasa Elizaga Yap
Caong was not then mentally
capacitated to execute the same, due to
her sickness.
(c) Because her signature to the will had
been obtained through fraud and illegal
influence upon the part of persons who
were to receive a benefit from the same,
and because the said Tomasa Elizaga
Yap Caong had no intention of
executing the same.
Second. That before the execution of
the said will, which they alleged to be null, the
said Tomasa Elizaga Yap Caong had executed
another will, with all the formalities required by
law, upon the 6th day of August, 1909.
Third. That the said Yap Ca Kuan and
Yap Ca Llu were minors and that, even though
they had been negligent in presenting their
opposition to the legalization of the will, said
negligence was excusable, on account of their
age.
Upon the foregoing facts the court was
45
requested to annul and set aside the order of
the 29th day of September, 1909, and to grant
Page
to said minors an opportunity to present new
proof relating to the due execution of said will.
Said petition was based upon the provisions of
section 113 of the Code of Procedure in Civil
Actions.
While it is not clear from the record,
apparently the said minors in their petition for a
new trial, attached to said petition the alleged
will of August 6, 1909, of the said Tomasa
Elizaga Yap Caong, and the affidavits of
Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon
the hearing of said motion for a rehearing, the
Honorable A. S. Crossfield, judge, granted said
motion and ordered that the rehearing should
take place upon the 18th day of March, 1910,
and directed that notice should be given to the
petitioners of said rehearing and to all other
persons interested in the will. At the rehearing
a number of witnesses were examined.
It will be remembered that one of the
grounds upon which the new trial was
requested was that the deceased, Tomasa
Elizaga Yap Caong, had not signed the will
(Exhibit A) of the 11th of August, 1909; that in
support of that allegation, the protestants,
during the rehearing, presented a witness
called Tomas Puzon. Puzon testified that he
was a professor and an expert in handwriting,
and upon being shown the will (of August 11,
1909) Exhibit A, testified that the name and
surname on Exhibit A, in his judgment were
written by two different hands, though the given
name is the same as that upon Exhibit 1 (the
will of August 6, 1909), because he found in
the name "Tomasa" on Exhibit A a similarity in
the tracing to the "Tomasa" in Exhibit 1; that
comparing the surname on Exhibit A with the
surname on Exhibit 1 he found that the
character of the writing was thoroughly
distinguished and different by the tracing and
by the direction of the letters in the said two
exhibits; that from his experience and
observation he believed that the name
"Tomasa" and "Yap Caong," appearing in the
signature on Exhibit A were written by different
person.
Puzon, being cross-examined with
reference to his capacity as an expert in
handwriting, testified that while he was a
student in the Ateneo de Manila, he had
studied penmanship; that he could not tell
exactly when that was, except that he had
concluded his course in the year 1882; that
since that time he had been a telegraph
operator for seventeen years and that he had
acted as an expert in hand- writing in the
courts in the provinces.
Gabriel La O was called as a witness
during the rehearing and testified that he had
drawn the will of the 6th of August, 1909, at the
request of Tomasa Elizaga Yap Caong; that it
was drawn in accordance with her request and
under her directions; that she had signed it;
that the same had been signed by three
witnesses in her presence and in the presence
of each other; that the will was written in her
house; that she was sick and was lying in her
bed, but that she sat up to sign the will; that
she signed the will with great difficulty; that she
was signed in her right mind.
The said Severo Tabora was also called
as a witness again during the rehearing. He
testified that he knew Tomasa Elizaga Yap
Caong during her lifetime; that she was dead;
that his signature as a witness to Exhibit A (the
will of August 11, 1909) was placed there by
him; that the deceased, Tomasa Elizaga Yap
Caong, became familiar with the contents of
the will because she signed it before he (the
witness) did; that he did not know whether
anybody there told her to sign the will or not;
that he signed two bills; that he did not know
La O; that he did not believe that Tomasa had
signed the will (Exhibit A) before he arrived at
the house; that he was not sure that he had
seen Tomasa Elizaga Yap Caong sign Exhibit
A because there were many people and there
was a screen at the door and he could not see;
that he was called a a witness to sign the
second will and was told by the people there
that it was the same as the first; that the will
(Exhibit A) was on a table, far from the patient,
in the house but outside the room where the
patient was; that the will was signed by Paez
and himself; that Anselmo Zacarias was there;
that he was not sure whether Anselmo
Zacarias signed the will or not; that he was not
sure whether Tomasa Elizaga Yap Caong
could see the table on which the will was
written at the time it was signed or not; that
there were many people in the house; that he
remembered the names of Pedro and Lorenzo;
that he could not remember the names of any
others; that the will remained on the table after
he signed it; that after he signed the will he
went to the room where Tomasa was lying; that
the will was left on the table outside; that
Tomasa was very ill; that he heard the people
asking Tomasa to sign the will after he was
(the witness) had signed it; that he saw Paez
sign the will, that he could not remember
whether Anselmo Zacarias had signed the will,
because immediately after he and Paez signed
it, he left because he was hungry; that the
place where the table was located was in the
same house, on the floor, about two steps
down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness
for the purpose of supporting the allegation that
46
Tomasa Elizaga Yap Caong was mentally
incapacitated to make the will dated August 11,
Page
1909 (Exhibit A). Papa declared that he was a
physician; that he knew Tomasa Elizaga Yap
Caong; that he had treated her in the month of
August; that he visited her first on the 8th day
of August; that he visited her again on the 9th
and 10th days of August; that on the first visit
he found the sick woman completely weak —
very weak from her sickness, in the third stage
of tuberculosis; that she was lying in bed; that
on the first visit he found her with but little
sense, the second day also, and on the third
day she had lost all her intelligence; that she
died on the 11th of August; tat he was
requested to issue the death certificate; that
when he asked her (Tomasa) whether she was
feeling any pain or anything of that kind, she
did not answer at all; that she was in a
condition of stupor, induced, as he believed, by
the stage of uraemia from which she was
suffering.
Anselmo Zacarias, who had signed the
will of August 11, 1909, was also called as a
witnesses during the rehearing. He testified
that he had known Tomasa Elizaga Yap Caong
since he was a child; that Tomasa was dead;
that he had written the will exhibit A; that it was
all in his writing except the last part, which was
written by Carlos Sobaco; that he had written
the will Exhibit A at the request of the uncle of
Tomasa; that Lorenzo, the brother of the
deceased, was the one who had instructed him
as to the terms of the will ; that the deceased
had not spoken to him concerning the terms of
the will; that the will was written in the dining
room of the residence of the deceased; that
Tomasa was in another room different from
that in which the will was written; that the will
was not written in the presence of Tomasa;
that he signed the will as a witness in the room
where Tomasa was lying; that the other
witnesses signed the will in the same room that
when he went into the room where the sick
woman was (Tomasa Elizaga Yap Caong)
Lorenzo had the will in his hands; that when
Lorenzo came to the bed he showed the will to
his sister (Tomasa) and requested her to sign
it; that she was lying stretched out on the bed
and two women, who were taking care of her,
helped her to sit up, supporting her by lacing
their hands at her back; that when she started
to write her name, he withdrew from the bed on
account of the best inside the room; when he
came back again to the sick bed the will was
signed and was again in the hands of Lorenzo;
that he did not see Tomasa sign the will
because he withdrew from the room; that he
did not know whether Tomasa had been
informed of the contents of the will or not; he
supposed she must have read it because
Lorenzo turned the will over to her; that when
Lorenzo asked her to sign the will, he did not
know what she said — he could not hear her
voice; that he did not know whether the sick
woman was him sign the will or not; that he
believed that Tomasa died the next day after
the will had been signed; that the other two
witnesses, Timoteo Paez and Severo Tabora,
had signed the will in the room with the sick
woman; that he saw them sign the will and that
they saw him sign it; that he was not sure
whether the testatrix could have seen them at
the time they signed the will or not; that there
was a screen before the bed; that he did not
think that Lorenzo had been giving instructions
as to the contents of the will; that about ten or
fifteen minutes elapsed from the time Lorenzo
handed the will to Tomasa before she started
to sign it; that the pen with which she signed
the will as given to her and she held it.
Clotilde Mariano testified that he was a
cigarette maker; that he knew Tomasa Elizaga
Yap Caong and that she was dead; that she
had made two wills; that the first one was
written by La O and the second by Zacarias;
that he was present at the time Zacarias wrote
the second one; that he was present when the
second will was taken to Tomasa for signature;
that Lorenzo had told Tomasa that the second
will was exactly like the first; that Tomasa said
she could not sign it.
On cross examination he testified that
there was a lot of visitors there; that Zacarias
was not there; that Paez and Tabora were
there; that he had told Tomasa that the second
will was exactly like the first.
During the rehearing Cornelia Serrano
and Pedro Francisco were also examined as
witnesses. There is nothing in their testimony,
however, which in our opinion is important.
In rebuttal Julia e la Cruz was called as
a witness. She testified that she was 19 years
of age; that she knew Tomasa Elizaga Yap
Caong during her lifetime; that she lived in the
house of Tomasa during the last week of her
illness; that Tomasa had made two wills; that
she was present when the second one was
executed; that a lawyer had drawn the will in
the dining room and after it had been drawn
and everything finished , it was taken to where
Doña Tomasa was, for her signature; that it
was taken to her by Anselmo Zacarias; that
she was present at the time Tomasa signed
the will that there were many other people
present also; that she did not see Timoteo
Paez there; that she saw Severo Tabora; that
Anselmo Zacarias was present; that she did
not hear Clotilde Mariano ask Tomasa to sign
the will; that she did not hear Lorenzo say to
Tomasa that the second will was the same sa
the first; that Tomasa asked her to help her to
47
sit up and to put a pillow to her back when
Zacarias gave her some paper or document
Page
and asked her to sign it; that she saw Tomasa
take hold of the pen and try to sign it but she
did not see the place she signed the document,
for the reason that she left the room; that she
saw Tomasa sign the document but did not see
on what place on the document she signed;
and that a notary public came the next
morning; that Tomasa was able to move about
in the bed; that she had seen Tomasa in the
act of starting to write her signature when she
told her to get her some water.
Yap Cao Quiang was also called as a
witness in rebuttal. He testified that he knew
Tomasa Elizaga Yap Caong and knew that she
had made a will; that he saw the will at the time
it was written; that he saw Tomasa sign it on
her head; that he did not hear Lorenzo ask
Tomasa to sign the will; that Lorenzo had
handed the will to Tomasa to sign; that he saw
the witnesses sign the will on a table near the
bed; that the table was outside the curtain or
screen and near the entrance to the room
where Tomasa was lying.
Lorenzo Yap Caong testified as a
witness on rebuttal. He said that he knew
Anselmo Zacarias and that Zacarias wrote the
will of Tomasa Elizaga Yap Caong; that
Tomasa had given him instructions; that
Tomasa had said that she sign the will; that the
will was on a table near the bed of Tomasa;
that Tomasa, from where she was lying in the
bed, could seethe table where the witnesses
had signed the will.
During the rehearing certain other
witnesses were also examined; in our opinion,
however, it is necessary to quote from them for
the reason that their testimony in no way
affects the preponderance of proof above
quoted.
At the close of the rehearing the
Honorable A. S. Crossfield, judge, in an
extended opinion, reached the conclusion that
the last will and testament of Tomasa Elizaga
Yap Caong, which was attached to the record
and marked Exhibit A was the last will and
testament of the said Tomasa Elizaga Yap
Caong and admitted it to probate and ordered
that the administrator therefore appointed
should continue as such administrator. From
that order the protestants appealed to this
court, and made the following assignments of
error:
I. The court erred in declaring that the
will, Exhibit A, was executed by the
deceased Tomasa Yap Caong, without
the intervention of any external influence
on the part of other persons.
II. The court erred in declaring that the
testator had clear knowledge and knew
what she was doing at the time of
signing the will.
III. The court erred in declaring that the
signature of the deceased Tomasa Yap
Caong in the first will, Exhibit 1, is
identical with that which appears in the
second will, Exhibit A.
IV. The court erred in declaring that the
will, Exhibit A, was executed in
accordance with the law.
With reference to the first assignment of
error, to wit, that undue influence was brought
to bear upon Tomasa Elizaga Yap Caong in
the execution of her will of August 11th, 1909
(Exhibit A), the lower court found that no undue
influence had been exercised over the mind of
the said Tomasa Elizaga Yap Caong. While it
is true that some of the witnesses testified that
the brother of Tomasa, one Lorenzo, had
attempted to unduly influence her mind in the
execution of he will, upon the other hand, there
were several witnesses who testified that
Lorenzo did not attempt, at the time of the
execution of the will, to influence her mind in
any way. The lower court having had an
opportunity to see, to hear, and to note the
witnesses during their examination reached the
conclusion that a preponderance of the
evidence showed that no undue influence had
been used. we find no good reason in the
record for reversing his conclusions upon that
question.
With reference to the second
assignment of error to wit, that Tomasa Elizaga
Yap Caong was not of sound mind and
memory at the time of the execution of the will,
we find the same conflict in the declarations of
the witnesses which we found with reference to
the undue influence. While the testimony of Dr.
Papa is very strong relating to the mental
condition of Tomasa Elizaga Yap Caong, yet,
nevertheless, his testimony related to a time
perhaps twenty-four hours before the execution
of the will in question (Exhibit A). Several
witnesses testified that at the time the will was
presented to her for her signature, she was of
sound mind and memory and asked for a pen
and ink and kept the will in her possession for
ten or fifteen minutes and finally signed it. The
lower court found that there was a
preponderance of evidence sustaining the
conclusion that Tomasa Elizaga Yap Caong
was of sound mind and memory and in the
possession of her faculties at the time she
signed this will. In view of the conflict in the
testimony of the witnesses and the finding of
the lower court, we do not feel justified in
reversing his conclusions upon that question.
With reference to the third assignment
of error, to wit, that the lower court committed
48
an error in declaring that the signature of
Tomasa Elizaga Yap Caong, on her first will
Page
(August 6, 1909, Exhibit 1), is identical with
that which appears in the second will (August
11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa
Elizaga Yap Caong executed the will of August
6, 1909 (Exhibit 1), was not the question
presented to the court. The question presented
was whether or not she had duly executed the
will of August 11, 1909 (Exhibit A).
Second. There appears to be but little
doubt that Tomasa Elizaga Yap Caong did
execute the will of August 6, 1909. Several
witnesses testified to that fact. The mere fact,
however, that she executed a former will is no
proof that she did not execute a later will. She
had a perfect right, by will, to dispose of her
property, in accordance with the provisions of
law, up to the very last of moment her life. She
had a perfect right to change, alter, modify or
revoke any and all of her former wills and to
make a new one. Neither will the fact that the
new will fails to expressly revoke all former
wills, in any way sustain the charge that she
did not make the new will.
Third. In said third assignment of error
there is involved in the statement that "The
signature of Tomasa Elizaga Yap Caong, in
her first will (Exhibit 1) was not identical with
that which appears in her second will (Exhibit
A)" the inference that she had not signed the
second will and all the argument of the
appellants relating to said third assignment of
error is based upon the alleged fact that
Tomasa Elizaga Yap Caong did not sign
Exhibit A. Several witnesses testified that they
saw her write the name "Tomasa." One of the
witnesses testified that she had written her full
name. We are of the opinion, and we think the
law sustains our conclusion, that if Tomasa
Elizaga Yap Caong signed any portion of her
name tot he will, with the intention to sign the
same, that the will amount to a signature. It has
been held time and time again that one who
makes a will may sign the same by using a
mark, the name having been written by others.
If writing a mark simply upon a will is sufficient
indication of the intention of the person to
make and execute a will, then certainly the
writing of a portion or all of her name ought to
be accepted as a clear indication of her
intention to execute the will. (Re Goods of
Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves.
Jr., 504; Baker vs. Dening, 8 Ad. and El., 94
Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk,
30 Penn., 218; Cozzen's Will, 61 Penn.,
196; Re Goods of Emerson, L. R. 9 Ir., 443;
Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported
in 131 Pennsylvania State, 220 (6 L. R. A.,
353), and cited by the appellees, which was
known as "Knox's Appeal." In this case one
Harriett S. Knox died very suddenly on the 17th
of October, 1888, at the residence of her
father. After her death a paper was found in
her room, wholly in her handwriting, written
with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and
bearing the signature simply of "Harriett." In
this paper the deceased attempted to make
certain disposition of her property. The will was
presented for probate. The probation was
opposed upon the ground that the same did
not contain the signature of the deceased. That
was the only question presented to the court,
whether the signature, in the form above
indicated, was a sufficient signature to
constitute said paper the last will and
testament of Harriett S. Knox. It was admitted
that the entire paper was in the handwriting of
the deceased. In deciding that question,
Justice Mitchell said:
The precise case of a signature by the
first name only, does not appear to have
arisen either in England or the United
States; but the principle on which the
decisions already referred to were
based, especially those in regard to
signing by initials only, are equally
applicable to the present case, and
additional force is given to them by the
decisions as to what constitutes a
binding signature to a contract. (Palmer
vs. Stephens, 1 Denio, 478; Sanborne
vs. Flager, 9 Alle, 474; Weston vs.
Myers, 33 Ill., 424; Salmon Falls, etc.
Co. vs. Goddard, 14 How. (U. S.), 446.)
The man who cannot write and who is
obliged to make his mark simply therefor, upon
the will, is held to "sign" as effectually as if he
had written his initials or his full name. It would
seem to be sufficient, under the law requiring a
signature by the person making a will, to make
his mark, to place his initials or all or any part
of his name thereon. In the present case we
think the proof shows, by a large
preponderance, that Tomasa Elizaga Yap
Caong, if she did not sign her full name, did at
least sign her given name "Tomasa," and that
is sufficient to satisfy the statute.
With reference to the fourth assignment
of error, it may be said that the argument which
was preceded is sufficient to answer it also.
During the trial of the cause the
protestants made a strong effort to show that
Tomasa Elizaga Yap Caong did not sign her
name in the presence of the witnesses and that
they did not sign their names in their presence
nor in the presence of each other. Upon that
question there is considerable conflict of proof.
49
An effort was made to show that the will was
signed by the witnesses in one room and by
Page
Tomasa in another. A plan of the room or
rooms in which the will was signed was
presented as proof and it was shown that there
was but one room; that one part of the room
was one or two steps below the floor of the
other; that the table on which the witnesses
signed the will was located upon the lower floor
of the room. It was also shown that from the
bed in which Tomasa was lying, it was possible
for her to see the table on which the witnesses
signed the will. While the rule is absolute that
one who makes a will must sign the same in
the presence of the witnesses and that the
witnesses must sign in the presence of each
other, as well as in the presence of the one
making the will, yet, nevertheless, the actual
seeing of the signatures made is not
necessary. It is sufficient if the signatures are
made where it is possible for each of the
necessary parties, if they desire to see, may
see the signatures placed upon the will.
In cases like the present where there is
so much conflict in the proof, it is very difficult
for the courts to reach conclusions that are
absolutely free from doubt. Great weight must
be given by appellate courts who do not see or
hear the witnesses, to the conclusions of the
trial courts who had that opportunity.
Upon a full consideration of the record,
we find that a preponderance of the proof
shows that Tomasa Elizaga Yap Caong did
execute, freely and voluntarily, while she was
in the right use of all her faculties, the will
dated August 11, 1909 (Exhibit A). Therefore
the judgment of the lower court admitting said
will to probate is hereby affirmed with costs.

50
Page
G.R. No. L-19142 March 5, 1923
In the matter of the estate of Mariano
Corrales Tan, deceased.
FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN
QUINTIN, oppositor-appellant.
OSTRAND, J.:
This is an appeal from an order of the Court of
First Instance of Manila admitting to probate a
document alleged to be the last will and
testament of the deceased Mariano Corrales
Tan. There is no direct evidence as to the
interest of the oppositor-appellant in the estate
in question, though it may, perhaps, be inferred
from the testimony of his wife Maximina Ong
that he is the son of the deceased.
In his answer to the petition for probate
he alleges, in substance, that the will is
incomplete and fraudulent and does not
express the true intent of the testator; that the
testator acted under duress and under undue
influence, and that at the time of the execution
of the will he was not of sound and disposing
mind.
We do not think the opponent has
succeeded in proving any of his allegations.
There is no evidence whatever showing that
the testator acted under duress or undue
influence and the only question of fact which
we need consider is whether the testator was
of sound and disposing mind when the
document in question was executed.
Upon this point the testimony of Dr. Tee
Han Kee, the attending physician, as a witness
for the opposition, is to the effect that the
deceased was suffering from diabetes and had
been in a comatose condition for several days
prior to his death. He died about eight or nine
o'clock in the evening of December 26, 1921,
and the will is alleged to have been executed in
the forenoon of the same day. Counsel for the
appellant, in his well-prepared brief, argues
ably and vigorously that coma implies complete
unconsciousness, and that the testator,
therefore, could not at that time have been in
possession of his mental faculties and have
executed a will. There are, however, varying
degrees of coma and in its lighter forms the
patient may be aroused and have lucid
intervals. Such seems to have been the case
here. Doctor Tee Han Kee, the opponent's
principal witness, who visited the deceased in
the evening of December 25th, says he
then seemed to be in a state of coma and that
in the forenoon of December 26th, when the
doctor again visited him, he was in "the same
state of coma." Maximina Ong, the wife of the
opponent, the only other witness for the
opposition, states that on December 26th the
deceased could not talk and did not recognize
anyone. But all the witnesses presented by the
petitioner, five in number, testify that the
deceased was conscious, could hear and
understand what was said to him and was able
to indicate his desires. Four of these witnesses
state that he could speak distinctly; the fifth,
Velhagen, says that the deceased only moved
his head in answer to questions.
That the deceased was in an
exceedingly feeble condition at the time the will
was executed is evident, but if the witnesses
presented in support of the petition told the
truth there can be no doubt that he was of
sound mind and capable of making his will.
And we see no reason to discredit any of these
witnesses; the discrepancies found between
their respective versions of what took place at
the execution of the document are
comparatively unimportant and so far from
weakening their testimony rather lend strength
to it by indicating the absence of any
conspiracy among them.
As against their testimony we have only
the testimony of Maximina Ong and Dr. Tee
Han Kee. The former is not a disinterested
witness. As to the testimony of the latter it is
sufficient to say that mere professional
speculation cannot prevail over the positive
statements of five apparently credible
witnesses whose testimony does not in itself
seem unreasonable.
There is no direct evidence in the record
showing that the publication of the time and
place of the hearing of the petition for probate
has been made as provided for in section 630
of the Code of Civil Procedure and the
appellant argues that the court below erred in
admitting the will to probate without proof of
such publication. This question not having
been raised in the court below will not be
considered here.
Section 630 of the Code of Civil
Procedure, speaking of hearings for the
probate of wills, also provides that "At the
hearing all testimony shall be taken under oath,
reduced to writing and signed by the
witnesses" and the appellant maintains that the
transcript of the testimony of the witness Dr. N.
M. Saleeby, not having been signed by the
witness, the testimony should have been
excluded.
There is no merit in this contention.
When, as in this case, the testimony is taken
by the stenographer of the court and certified
to by him, the provision quoted can only be
regarded as directory and a failure to observe
the provision will not render the testimony
51
inadmissible. (Reese vs. Nolan, 99 Ala., 203.)
Page
 The order appealed from is affirmed,
with the costs against the appellant. So
ordered.

52
Page
[G.R. No. 6650. December 5, 1913. ] by the said Galvez for the probate of the will,
SANTIAGO GALVEZ, Petitioner-Appellant,
v. CANUTA GALVEZ, Opponent-Appellee.
Eugenio Paguia, for Appellant.
Antonio Constantino, for Appellee.
SYLLABUS
1. WILLS; MENTAL CAPACITY OF THE
TESTATOR. — In order to hold that a testator,
as the result of cholera, was not of sound mind
and did not have full knowledge of his acts and
was incapable of executing a valid will, it is
indispensable that the proceedings disclose
conclusive proof of his mental incapacity and of
his lack of reason and judgment at the time he
executed his will in due form. In this case,
aside from the evidence by the witnesses who
testified that the mental faculties of the testator
were unimpaired, the contents of the will, and
the desire manifested by the latter to rectify an
error he incurred in the execution of his first
will, show that the testator was of sound mind
and perfectly aware of his duties with respect
to the legal, inviolable rights of his daughter
and sole heir.
2. ID.; ID.; PHYSICIAN’S TESTIMONY BASED
ON A GENERAL RULE. — Statements by a
physician who did not see or examine the
testator at the time the latter was making his
will, based on the condition and mental state of
a cholera patient in ordinary cases and in the
regular course of the disease, cannot serve as
a ground for declaring the testator incompetent
when, notified of an error incurred by him in his
firsts will executed a few hours before, and
exhibited in court, he declared his desire to
correct the same by executing a second will;
inasmuch as the testimony of the subscribing
witnesses and of the person who drew up the
document, shows that the mental and physical
condition of the testator was an exception to
the general rule enunciated by the said
physician, since the patient demonstrated that
he had sufficient moral energy and clear
intelligence, in spite of the inroads made by the
disease, to have been able to execute his last
will and testament in accordance with the
requirements of the law.
DECISION
TORRES, J. :
This is appeal was raised by counsel for
Santiago Galvez from the judgment of October
25, 1910, whereby the Honorable Simplicio del
Rasorio, judge, denied the petition presented
Exhibit B, and appointed as adminsitratix of the
testator’s estate, the latter’s only legitimate
daughter, Canuta Galvez, under condition that
she furnish bond in the sum of P2,000 for the
faithful discharged of the duties of her office.
Counsel for Santiago Galvez petitioned the
Court of First Instance of Bulacan for the
probate of the will which it was alleged Victor
executed in the dialect of the province, on
August 12, 1910, in presence of the witnesses
Juan Dimanlig, J. Leoquinco, and Nazaria
Galves. This instrument appears also to have
been signed by the witness Lorenzo Galvez,
below the name and surname of the testator.
(p. 3, B. of E., translated into Spanish on p.5.)
Further on in the same record, pages 6 to 7,
there appears another will written in Tagalog
and executed on the same date by Victor
Galvez in presence of the witnesses Cirilo
Paguia, Florentino Sison, and Juan Mendoza.
In the course of the proceedings various
witnesses were examined by the petitioner and
by the respondent, Canuta Galvez, the only
daughter of the alleged testator, and the
attorney Antonio Constantino stated that he
waived the right to present evidence and
acquiesced in the petition made by Santiago
Galvez for the probate of the will, in view of a
transaction entered into by the parties; but the
court did not accept the compromise, on the
ground that it is improper to hold that a will is
the faithful expression of the last wishes of a
decedent, upon the mere fact of the parties’
petitioning to that effect, when such will, as in
the case at bar, was assailed at the
commencement of the suit.
After due trial the judgment aforementioned
was rendered, from which an appeal was
entered by counsel for the petitioner, Santiago
Galvez.
This case deals with the probate of the second
will executed by Victor Galvez on August 12,
1910, and signed in his presence by the
witnesses Juan Dimanlig, Nazaria Galvez, and
J. Leoquinco, and, as the testator was no
longer able to sign on account of his sickness,
Lorenzo Galvez, at his request, affixed his own
signature to the instrument, for him and below
his written name. This will, written in Tagalog
and translated into Spanish, is marked as
Exhibit B and is found on pages 3 and 5 of the
bill of exceptions.
53
The other will, written in Tagalog and marked
Exhibit A, was presented during the
Page
proceedings; it was the first one the testator
executed on the same date, and, for the
purpose of correcting an error contained in this
first will, he executed another will, the second,
which is the one exhibited for probate.
Notwithstanding the opposition by Canuta
Galvez, the testator’s daughter, who alleged
that her father, owing to his very serious
sickness with cholera, lacked the intellectual
capacity and clear judgment requisite for
making a will, and notwithstanding her
testimony adduced in corroboration of her brief,
the record sufficiently proved the contrary; the
subscribing witnesses to the will affirmed under
oath that they were present when Victor
Galvez, then such in his house, stated to them
that the document read before them by
Lorenzo Galvez contained his last will and
testament, and that, as the testator was no
longer able to sign, he charged his nephew
Lorenzo to do so in his stead, which the latter
did by affixing his own signature to the
document, after having written at the foot of the
same the name and surname of the testator,
Victor Galvez, who, as these witnesses
observed, was of sound mind and in the full
enjoyment of his mental faculties; he talked
intelligently and with perfect knowledge of what
was taking place. They further testified that
they all, including the said Lorenzo Galvez,
signed the will in the presence of the testator,
Victor Galvez, who was at the time lying on his
bed.
In order to hold that Victor Galvez, on account
of serious sickness, was not then of sound
mind and did not have full knowledge of his
acts and, therefore, was incapable to execute a
will, it is necessary that the proceedings
disclose conclusive proof of his mental
incapacity and of his evident lack of reason
and judgment at the time he executed his will
in the presence of the witnesses whose
signatures appear at the foot thereof, for these
witnesses positively affirmed that Victor
Galvez, on executing his will, showed that he
was in full possession of his intellectual
faculties and was perfectly cognizant of his
acts.
The physician Dr. Vicente de Jesus, in his
testimony, referred to the effects and results of
cholera on a patient in ordinary cases and in
the regular course of this disease; but his
statements, taken in general, cannot, in the
present suit, serve as a ground upon which to
predicate incapacity, for the reason that he did
not examine Victor Galvez, nor did he even
see him between the hours of 12 in the
morning and 3 in the afternoon of the 12th of
August, 1910, during which period the testator
ordered his will drawn up and the attesting
witnesses signed it, Galvez having died at
about 6 o’clock that same afternoon. It may be
true that cholera patients do, in the majority of
cases, become incapacitated in the manner
described by the witnesses; but there may be
exceptions to the general rule, and to judge
from the testimony of the witnesses who saw
and communicated with the patient Victor
Galvez at the time he executed his will, his
physical and mental condition mush have been
an exception, since he demonstrated that he
had sufficient energy and clear intelligence to
execute his last will in accordance with the
requirements of the law.
Besides the attestation of the aforesaid
subscribing witnesses, the contents of the will
and the testator’s positive determination to
rectify the error he incurred in the execution of
this first will, show that Victor Galvez was in his
sound mind and was perfectly aware of his
duties in respect to the legal, inviolable rights
of his daughter and sole heir, Canuta Galvez.
Inasmuch as, in the drafting and execution of
the second will (Exhibit B), signed in the name
of the testator by Lorenzo Galvez and the
witnesses Juan Dimanlig, Nazaria Galvez, and
J. Leoquinco, the formalities prescribed by
section 618 of the Code of Civil Procedure
were observed, for the testator’s name appears
written at the foot of the will and under this
name Lorenzo Galvez signed by direction of
the testator himself, and the instrument was
also signed by the attesting witnesses before
mentioned who affirmed that they heard and
attested the dispositions made by the testator
and witnessed the reading of the will, that they
were present when the said Lorenzo Galvez
signed the will in the name of the testator and
that they signed it in the presence of all the
persons assembled in the latter’s house, the
conclusion is inevitable that Victor Galvez, in
executing his will, did so with a sound mind
and the full use of his mental faculties;
therefore, the will must be admitted to probate.
For the foregoing reasons, with a reversal of
the judgment appealed from in so far as it
denies the probate of the said will, we hereby
hold that the same was duly executed by Victor
Galvez and expresses his last wishes, and we
affirm the rest of the said judgment, with
respect to the appointment, as administratrix,
of Canuta Galvez, the testator’s daughter and
sole heir.
54
Page
G.R. No. L-21015 March 24, 1924
MIGUELA CARRILLO, for herself and as
administratrix of the intestate estate of
ADRIANA CARRILLO, deceased, plaintiff-
appellant,
vs.
JUSTINIANO JAOJOCO and MARCOS
JAOJOCO, defendants-appellees.
AVANCEÑA, J.:
On the evening of December 9, 1918, Adriana
Carrillo executed a document of sale of eleven
parcels of land, with one-half of the
improvements thereon, situated in the barrio of
Ulong-Tubig, municipality of Carmona,
Province of Cavite, containing an area of
330,409 square meters, in favor of Marcos
Jaojoco for the price of P4,000 which the seller
admitted having received. Nine days
afterwards Adriana Carrillo was declared
mentally incapacitated by the Court of First
Instance and later on died; and proceeding
having been instituted for the administrator and
settlement of her estate, her sister Miguela
Carrillo was appointed judicial administratrix of
said estate. In her capacity as such
administratrix, Miguela Carrillo now brings this
action for the annulment of said contract of
sale executed by Adriana Carrillo on December
9, 1918, against Marcos Jaojoco, the
purchaser, and his father Justiniano Jaojoco.
The defendants were absolved from the
complaint, and from this judgment the plaintiff
appealed.
The plaintiff has attempted to prove that
prior to the year 1918 and specially in the year
1917, Adriana Carrillo performed acts which
indicated that she was mentally deranged. We
have made a thorough examination of the
character of those acts, and believe that they
do not necessarily show that Adriana Carrillo
was mentally insane. The same thing can be
said as to her having entered the "Hospital de
San Lazaro" and the "Hospicio de San Jose,"
in the absence of an affirmative showing to her
motive for entering said institutions, for while it
is true that insane persons are confined in
those institutions, yet there also enter persons
who are not insane. Against the inference that
from said acts the plaintiff pretends to draw, in
order to assert the mental incapacity of Adriana
Carrillo in that time, there is in the record
evidence of acts while more clearly and more
convincingly show that she must not have been
mentally incapacitated before the execution of
the document sought to be annulled in this
action. In January, 1917, her husband having
died, she was appointed judicial administratrix
of the latter's estate, and to his end she took
the oath of office, gave the proper bond
discharged her functions in the same manner
and with the same diligence as any other
person of knowingly sound mind would have
done. Documents, were introduced which show
complex and numerous acts of administration
performed personally by said Adriana Carrillo,
such as the disposition of various and
considerable amounts of money in transactions
made with different persons, the correctness of
said acts never having been, nor can it be, put
in question. We have given special attention to
the fact of Adriana Carrillo having executed
contracts of lease, appeared in court in the
testate proceeding in which she was
administratrix, and in fact continued acting as
such administratrix of the estate of her
husband until August, 1917, when for the
purpose of taking vacation, she requested to
be relieved from the office. On November 13,
1918, Adriana Carrillo entered the "Hospital de
San Juan de Dios" by reason of having had an
access of cerebral hemorrhage with
hemiplegia, and there she was attended by
Doctor Ocampo until she left on the 18th of
December of the same year very much better
off although not completely cured. Asked about
the mental incapacity of Adriana Carrillo during
her treatment, Doctor Ocampo answered that
he did not pay attention to it, but that he could
affirm that the answers she gave him were
responsive to the questions put to her, and that
the hemiplegia did not affect her head but only
one-half of the body. After leaving the "Hospital
de San Juan de Dios" on December 8, 1918,
Adriana Carrillo called at the office of the
notary public, Mr. Ramos Salinas, and there
executed the contract of sale in question on the
9th of that month. The notary, Mr. Salinas, who
authorized the document, testified that on that
day he has been for some time with Adriana
Carrillo, waiting for one of the witnesses to the
document, and he did not notice anything
abnormal in her countenance, which on the
contrary, appeared to him dignified, answering
correctly all the questions he made to her
without inconsistencies or failure of memory,
for which reason, says this witness, he was
surprised when afterwards he learned that the
mental capacity of Adriana Carrillo was in
question.
It must be noted that the principal
witness for the plaintiff and the most interested
party in the case, being the plaintiff herself,
was the surety of Adriana Carrillo when the
latter was appointed judicial administratrix of
the estate of her husband in 1917. It cannot be
understood, if Adriana Carrillo was in that time
mentally incapacitated, why Miguela Carrillo,
the plaintiff, who knew it, consented to be a
55
surety for her. It must likewise be noted that
the other witnesses of the plaintiff, who testified
Page
to the incapacity of Adriana Carrillo, also made
transactions with her precisely at the time,
when according to them, she was mentally
incapacitated. In view of all of this, which is
proven by documents and the testimonies of
witnesses completely disinterested in the case,
it cannot be held that on December 9, 1918,
when Adriana Carrillo signed the document,
she was mentally incapacitated.
The fact that nine days after the
execution of the contract, Adriana Carrillo was
declared mentally incapacitated by the trial
court does not prove that she was so when she
executed the contract. After all, this can
perfectly be explained by saying that her
disease became aggravated subsequently.
Our conclusion is that prior to the
execution of the document in question the
usual state of Adriana Carrillo was that of being
mentally capable, and consequently the burden
of proof that she was mentally incapacitated at
a specified time is upon him who affirms said
incapacity. If no sufficient proof to this effect is
presented, her capacity must be presumed.
Attention is also called to the
disproportion between the price of the sale and
the real value of the land sold. The evidence,
however, rather shows that the price of P4,000
paid for the land, which contained an area of
33 hectares, represents it real value, for its is
little more than P100 per hectare, which is
approximately the value of other lands of the
same nature in the vicinity. But even supposing
that there is such a disproportion, it alone is not
sufficient to justify the conclusion that Adriana
Carrillo was mentally incapacitated for having
made the sale under such conditions. Marcos
Jaojoco is a nephew of Adriana Carrillo, and
Justiniano Jaojoco her brother-in-law, and both
defendants, who are father and son, had
Adriana Carrillo in charge, took her to the
"Hospital de San Juan de Dios," and cared for
her during the time she was there, and for such
acts they may have won her gratitude. Under
these circumstances there is nothing illegal, or
even reprehensible, and much less strange in
Adriana Carrillo's having taken into account
those services rendered her by the defendants
and reciprocated thereof by a favorable
transaction. Having no ascendants and
descendents, she could, in consideration of all
the these circumstances, have even given as a
donation, or left by will, these lands to the
defendants.
56
Page
G.R. No. L-10027 November 13, 1915
ROSENDO HERNAEZ y ESPINOSA, plaintiff-
appellant,
vs.
MATEO HERNAEZ y ESPINOSA, ET
AL., defendants-appellants.
TRENT, J.:
The spouses, Pedro Hernaez and Juana
Espinosa, died, leaving several legitimate
descendants. Neither of their estates had been
divided up to the date of the institution of this
action, but were both under administration.
Their son, Domingo Hernaez y Espinosa, sold
all his interest in both his father's and mother's
estate to his son, Vicente Hernaez y Tuason,
on November 6, 1901. Notwithstanding the fact
that Domingo Hernaez y Espinosa had thus
parted with all his interest in the estates of his
two parents, he executed a document of sale in
favor of Alejandro Montelibano y Ramos on
February 27, 1907, in which he purported to
convey all his undivided interest in his mother's
estate. On the same date he executed another
document of sale in which he purported to
convey to Jose Montelibano Uy-Cana four-
eighteenths of his interest in his mother's
estate. Both of these sales were made with the
connivance of his son, Vicente Hernaez y
Tuason. Hence, although Vicente Hernaez y
Tuason had actually purchased all of his
father's interests in the estates of Pedro
Hernaez and Juana Espinosa as early as
November 6, 1901, and was, on February 27,
1907, the undoubted owner thereof, he is
effectually estopped from asserting his title as
against either of the vendees mentioned in the
documents of sale dated February 27, 1907, to
which we have just referred. (Code Civ. Pro.,
sec. 333, No. 1.) Bigelow on Estoppel (p. 607)
says:
. . . it is now a well-established principle
that where the true owner of property,
for however short a time, holds out
another, or, with knowledge of his own
right, allows another to appear as the
owner of or as having full power of
disposition over the property, the same
being in the latter's actual possession,
and innocent third parties are thus led
into dealing with such apparent owner,
they will be protected.
On August 19, 1912, Jose Montelibano
Uy-Cana sold his interest in the estate to
Alejandro Montelibano y Ramos. By this
transfer, the latter stood owner of all the
interest of Domingo Hernaez y Espinosa in the
estate of Pedro Hernaez, and five-eighteenths
of his interest in the estate of Juana Espinosa
as against Vicente Hernaez y Espinosa.
It is admitted that Rosendo Hernaez y
Espinosa, another son of the deceased
spouses administrator of the estates, was
notified of Montelibano's purchases on January
8, 1913, when he received notice of
Montelibano's motion, entered in the
administration proceedings, asking that he
(Montelibano) be substituted as assignee of
the interests of various heirs of the estate
which he had acquired by purchase.
Notwithstanding this knowledge, Rosendo
Hernaez y Espinosa entered into a contract of
sale with Vicente Hernaez y Tuason, whereby
the latter purported to convey all the interest,
which he had acquired from his father, in the
estate of the deceased spouses, Pedro
Hernaez and Juana Espinosa. It will be
remembered that he purchased his father's
share of the estate on November 6, 1901; that
he is estopped from asserting title to any
interest in his grandfather's estate and in five-
eighteenths of his grandmother's estate.
Rosendo Hernandez y Espinosa purchased
with full knowledge of these facts. He,
therefore, acquired thirteen-eighteenths of the
interest of Domingo Hernaez y Espinosa in the
estate of the latter's mother nothing more.
That rule is that the holder [Alejandro
Montelibano y Ramos] of a prior
equitable right has priority over the
purchaser [Rosendo Hernandez y
Espinosa] of a subsequent estate
(whether legal or equitable) without
value, or with notice of the equitable
right, but not as against a subsequent
purchaser for value and without notice.
(Ewart on Estoppel, p. 199.)
Alejandro Montelibano y Ramos has acquired
in his interest in the estate of the deceased
spouses for a valuable consideration and in
good faith, and there remains to the plaintiff,
Rosendo Hernaez y Espinosa, only the right of
subrogation allowed him by article 1067 of the
Civil Code, which reads as follows:
If any of the heirs should sell his
hereditary rights to a stranger before the
division, all or any of the co-heirs may
subrogate himself in the place of the
purchaser, reimbursing him for the value
of the purchase, provided they do so
within the period of a month, to be
counted from the time they were
informed thereof.
On January 24, 1913, the plaintiff instituted this
action seeking to subrogate himself in the
rights acquired by Montelibano in the estate.
Unless the plaintiff can be charged with actual
57
notice of the conveyance by which Montelibano
acquired these interests, prior to January 8,
Page
1913, it is clear that he has opportunely
asserted his right of subrogation. This is purely
a question of fact. As to the sales whereby
Domingo Hernaez y Espinosa parted with that
portion of his interest in the estate which is now
held by Alejandro Montelibano, as well as to
those sales made by other heirs to
Montelibano, the trial court found that the
plaintiff, Rosendo Hernaez y Espinosa, was not
chargeable with notice prior to January 8,
1913. After a careful examination of the record
we see no reason for disturbing this finding of
fact. As a consequence, the plaintiff, Rosendo
Hernaez y Espinosa, is entitled to exercise his
right of subrogation in accordance with article
1067, above quoted.
The interest which Jose Montelibano
Uy-Cana purchased from Domingo Hernaez y
Espinosa on February 27, 1907, for the sum of
P4,500, he afterwards transferred to Alejandro
Montelibano y Ramos for the sum of P10,000.
In rendering judgment, the trial court decreed
that the plaintiff, Rosendo Hernaez y Espinosa,
should pay the latter sum for the privilege of
exercising the right of subrogation. This was
error. Article 1067 of the Civil Code provides
that the co-heir may exercise this right of
subrogation upon the payment to the
purchaser of another heir's interest, "el precio
de la compra" (the purchase price). Obviously,
if the interest had not been resold, the plaintiff,
Rosendo Hernaez y Espinosa, would have had
to pay only the price for which Uy-Cana
acquired it. The purpose of the article cannot
be evaded by a reconveyance of the interest to
a third person at a higher price. Subsequent
purchasers of the interest acquire it burdened
with the right of subrogation of co-heirs at the
price for which the heir who sold it parted with
it.
It is urged that the prices in some of the
deeds of sale by which Alejandro Montelibano
y Ramos purchased the interest of various
heirs in the estates are fictitious. This is a
question of fact upon which both parties
adduced evidence, and we concur in the
opinion of the trial court that there is no basis
to the charge. For the foregoing reasons, the
judgment of the court is modified by
substituting, as the price of subrogation of the
interest originally purchased by Jose
Montelibano Uy-Cana, the sum of P4,500, as
set out in Exhibit 7, for the sum of P10,000, the
consideration expressed in Exhibit 10. As
modified, the judgment appealed from is
affirmed, without costs.

So ordered.
58
Page
C.A. No. 4 March 21, 1946
In the matter of the testate estate of the late
Encarnacion Neyra. TRINIDAD
NEYRA, petitioner-appellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and
MARIA JACOBO VDA. DE
BLANCO, oppositors-appellants.
TEODORA NEYRA, PILAR DE GUZMAN and
MARIA JACOBO VDA. BLANCO, petitioners-
appellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO
MENDOZA, oppositors-appellees.
DE JOYA, J.:
This is an appeal from a decree rendered by
the Hon. Gervasio Diaz, Judge of the Court of
First Instance of the City of Manila, on
December 3, 1943, admitting to probate a will
dated November 3, 1942, executed by the
deceased Encarnacion Neyra; at the same
time denying the probate of a previous will
dated September 14, 1939, alleged to have
been executed by the said testatrix.
Trinidad Neyra, beneficiary in the will
executed on November 3, 1942, filed, on
November 10, 1942, a petition in the Court of
First Instance of Manila, for the probate of said
will.
On December 19, 1942, Teodora Neyra,
Pilar de Guzman, and Maria Jacobo Vda. de
Blanco, who had not been named as
beneficiaries in said will, filed on opposition to
the probate of the said will dated November 3,
1942, alleging (1) that at the time of the alleged
execution of the said will, the testatrix
Encarnacion Neyra no longer possessed
testamentary capacity; (2) that her thumb
marks on said instrument had been procured
by means of fraud by petitioner Trinidad Neyra,
and that Encarnacion Neyra never intended to
consider said document as will; (3) that the
alleged will, dated November 3, 1942, had not
been executed in the manner and form
prescribed by law; and(4) that Encarnacion
Neyra, since September 14, 1939, had
executed a will, naming as beneficiaries said
oppositors and others, and that said will had
never been revoked or amended in any
manner whatsoever.
On December 26, 1942, petitioner
Trinidad Neyra filed a reply denying the
allegations in the opposition.
Subsequently, said oppositors filed a
counter petition, asking for the probate of the
first will executed by Encarnacion Neyra, on
September 14, 1939, marked as Exhibit 16. On
March 16, 1943, the legatees Trinidad Neyra
and Eustaquio Mendoza filed their opposition
to the probate on said will marked as Exhibit
16, and amended said opposition, on
September 15, 1943, to which Teodora Neyra
and the others filed a reply, on September 20,
1943.
On the dates set for the hearing on the
petition filed by Trinidad Neyra, and the
counter petition mentioned above, said
petitioner as well as the oppositors, presented
evidence, testimonial and documentary. The
witnesses presented by the petitioner Trinidad
Neyra were Mons. Vicente Fernandez, Rev. Fr.
Teodoro Garcia, Sor. Andrea Montejo, Dr.
Moises B. Abad, Dr. Eladio A. Aldecoa, Atty.
Ricardo Sikat, petitioner Trinidad Neyra
herself, and Atty. Alejandro M. Panis, who had
acted as scrivener in the preparation of said
will dated November 3, 1942.
Teodora Neyra and the other oppositors
also presented several witnesses, the principal
among whom were Presentacion Blanco,
Caferina de la Cruz, Acislo Manuel, Dr.
Dionisio Parulan, an alleged medical expert,
and the oppositors Teodora Neyra and Pilar de
Guzman themselves.
After considering the evidence, the
lower court rendered a decree admitting to
probate the will dated November 3, 1942; at
the same time denying the probate of the will
dated September 14, 1939.
From said decision Teodora Neyra and
the other oppositors appealed to the Court of
Appeals for the City of Manila, assigning
several errors, which may be reduced to the
following, to wit, that the trial court erred (1) in
finding that Encarnacion Neyra wanted to
make a new will; (2) in declaring that there was
reconciliation between Encarnacion Neyra and
her sister Trinidad; (3) in accepting as
satisfactory the evidence submitted by the
petitioner; (4) in ignoring the evidence
submitted by the oppositors; and (5) in not
admitting to probate the will dated September
14, 1939.
The evidence, testimonial and
documentary, adduced during the trial of the
case in the court below, has satisfactorily and
sufficiently established the following facts:
That Severo Neyra died intestate in the
City of Manila, on May 6, 1938, leaving certain
properties and two children, by his first
marriage, named Encarnacion Neyra and
Trinidad Neyra, and several other relatives;
that after the death of Severo Neyra, the two
sisters, Encarnacion Neyra and Trinidad
Neyra, had serious quarrels, in connection with
the properties left by their deceased father, and
so serious were their dissensions that, after
March 31, 1939, they had two litigations in the
59
Court of First Instance of Manila, concerning
said properties (Exhibits 8 and 9): In the first
Page
case, filed on March 31, 1939, Trinidad Neyra
and others demanded from Encarnacion Neyra
et al. the annulment of the sale of the property
located at No. 366 Raon Street, Manila, and it
was finally decided in favor of the defendants
in the Court of First Instance and in the Court
of Appeals, on December 21, 1943 (G.R. No.
8162, Exhibit 9).
In the second case, filed on October 25,
1939, Trinidad Neyra demanded from
Encarnacion Neyra, one-half (½) of the
property described therein, and one-half (½) of
the rents, and the Court of First Instance
decided in favor of the plaintiff, but at the same
time awarded in favor of the defendant
P727.77, under her counterclaim; and Trinidad
Neyra again elevated the case to the Court of
Appeals for Manila (G.R. No. 8075) Exhibit 8,
which was decided, pursuant to the document
of compromise marked as Exhibit D; and the
petition for reconsideration filed therein still
remains undecided.
That Encarnacion Neyra, who had
remained single, and who had no longer any
ascendants, executed a will on September 14,
1939, marked Exhibit 16, disposing of her
properties in favor of the "Congregacion de
Religiosas de la Virgen Maria" and her other
relatives named Teodora Neyra, Pilar de
Guzman and Maria Jacobo Vda. de Blanco,
making no provision whatsoever in said will in
favor of her only sister Trinidad Neyra, who
had become her bitter enemy; that when the
said will was brought to the attention of the
authorities of said Congregation, after due
deliberation and consideration, said religious
organization declined the bounty offered by
Encarnacion Neyra, and said decision of the
Congregation was duly communicated to her;
that in order to overcome the difficulties
encountered by said religious organization in
not accepting the generosity of Encarnacion
Neyra, the latter decided to make a new will,
and for that purpose, about one week before
her death, sent for one Ricardo Sikat, an
attorney working in the Law Offices of Messrs.
Feria and LaO, and gave him instructions for
the preparation of a new will; that Attorney
Sikat, instead of preparing a new will, in
accordance with the express instructions given
by Encarnacion Neyra, merely prepared a draft
in the form of a codicil, marked as Exhibit M,
amending said will, dated September 14, 1939,
again naming said religious organization,
among others, as beneficiary, and said draft of
a codicil was also forwarded to the authorities
of the said religious organization, for their
consideration and acceptance.
In the meanwhile, Encarnacion Neyra
had become seriously ill, suffering from
Addison's disease, and on October 31, 1942,
she sent for her religious adviser and
confessor, Mons. Vicente Fernandez of the
Quiapo Church to make confession, after
which she expressed her desire to have a
mass celebrated in her house at No. 366 Raon
Street, City of Manila, so that she might take
holy communion, in view of her condition; that
following the request of Encarnacion Neyra,
Mons. Fernandez caused the necessary
arrangements to be made for the celebration of
holy mass in the house of Encarnacion Neyra,
and, as a matter of fact, on November 1, 1942,
holy mass was solemnized in her house, Fr.
Teodoro Garcia, also of the Quiapo Church,
officiating in said ceremony, on which
occasion, Encarnacion Neyra, who remained in
bed, took holy communion; that after said
religious ceremony had been terminated,
Father Garcia talked to Encarnacion Neyra and
advised reconciliation between the two sisters,
Encarnacion Neyra and Trinidad Neyra.
Encarnacion Neyra accepted said advice and
at about noon of the same day (November 1,
1942), sent Eustaquio Mendoza to fetch her
sister Trinidad Neyra, who came at about 2:30
that same afternoon; that on seeing one
another, the two greeted each other in a most
affectionate manner, and became reconciled;
that the two had a long and cordial
conversation, in the course of which the two
sisters also talked about the properties left by
their deceased father and their litigations which
had reached the Court of Appeals for the City
of Manila, and they agreed to have the said
appeal dismissed, on the condition that the
property involved therein, consisting of a small
house and lot, should be given exclusively to
Trinidad Neyra, on the condition that the latter
should waive her claim for her share in the
rents of said property, while under the
administration of Encarnacion Neyra, and that
the two should renounce their mutual claims
against one another. It was also agreed
between the two sisters to send for Atty.
Alejandro M. Panis, to prepare the necessary
document embodying the said agreement, but
Attorney Panis could come only in the
afternoon of the following day, November 2,
1942, when Encarnacion gave him instructions
for the preparation of the document embodying
their agreement, and other instructions relative
to the disposition she wanted to make of her
properties in her last will and testament; that
Attorney Panis prepared said document of
compromise or agreement marked as Exhibit
D, as well as the new will and testament
marked as Exhibit C, naming Trinidad Neyra
and Eustaquio Mendoza beneficiaries therein,
pursuant to the express instructions given by
60
Encarnacion Neyra, and said instruments were
ready for signature on November 3, 1942; that
Page
in the afternoon of that day, November 3, 1942;
Attorney Panis read said will and testament
marked as Exhibit D to Encarnacion Neyra
slowly and in a loud voice, in the presence of
Fr. Teodoro Garcia, Dr. Moises B. Abad, Dr.
Eladio Aldecoa, herein petitioner Trinidad
Neyra, and others, after which he asked her if
its terms were in accordance with her wishes, if
she had anything else to add, or anything to be
changed in said will; and as Encarnacion
Neyra stated that the terms of said will were in
accordance with her wishes and express
instructions, she asked for the pad and the will
Exhibit C and, with the help of a son of herein
petitioner, placed her thumb mark at the foot of
said will, in the presence of the three attesting
witnesses, Dr. Moises B. Abad, Dr. Eladio R.
Aldecoa, and Atty. Alejandro M. Panis, after
which the attesting witnesses signed at the foot
of the document, in the presence of the
testatrix Encarnacion Neyra, and of each and
everyone of the other attesting witnesses. Fr.
Teodoro Garcia and petitioner Trinidad Neyra
and several others were also present.
On November 4, 1942, the testatrix
Encarnacion Neyra, due to a heart attack,
unexpectedly died.
Although the "Congregacion de
Religiosas de la Virgen Maria" had again
decided not to accept the provision made in its
favor by the testatrix Encarnacion Neyra in the
proposed codicil prepared by Atty. Ricardo
Sikat, said decision could not be
communicated to the testatrix, before her
death.
Mons. Vicente Fernandez and Fr.
Teodoro Garcia testified as to the request
made on October 31, 1942, by Encarnacion
Neyra for the celebration of holy mass in her
house, on November 1, 1942; that said mass
was in fact solemnized in her house, on that
date, in the course of which the testatrix
Encarnacion Neyra took holy communion; that
on the same day, after the mass, Encarnacion
held a long conversation with Father Garcia, in
the course of which, said priest advised her to
have reconciliation with her sister Trinidad; and
that said advise was accepted by Encarnacion.
But the testimony of Trinidad Neyra, it
has been shown that Encarnacion sent
Eustaquio Mendoza to fetch her, and that in
fact she came to the house of Encarnacion, at
about 2:30 o'clock in the afternoon that same
day, November 1, 1942, with said Eustaquio
Mendoza; that on seeing one another,
Encarnacion and Trinidad Neyra greeted each
other most affectionately, forgiving one
another, after which they talked about the
property left by their deceased father and the
litigation pending between them; and the two
sisters agreed to settle their case, which had
been elevated to the Court of Appeals for the
City of Manila, concerning a certain house and
lot, on the understanding that said property
should be given exclusively to Trinidad, and
that the latter should renounce her claim
against Encarnacion, for her share in the rents
collected on said property, and, at the same
time, Encarnacion renounced her claim for
P727.77 against Trinidad; and that it was also
agreed between the two sisters that Atty.
Alejandro M. Panis should be called to prepare
the necessary papers for the settlement of said
case. Presentacion Blanco, a witness for the
oppositors, also testified substantially to the
foregoing facts.
By the testimony of Trinidad Neyra and
Atty. Alejandro M. Panis, and the other
attesting witnesses, it has also been shown
that Atty. Alejandro M. Panis came in the
afternoon of the following day, November 2,
1942, and received instructions from
Encarnacion Neyra, not only for the
preparation of said agreement, but also for the
preparation of a new will, and consequently
Attorney Panis prepared said document of
compromise and the will, dated November 3,
1942, which were both thumb marked, in
duplicate, in the afternoon of that day, by
Encarnacion Neyra, who was then of sound
mind, as shown by her appearance and
conversation, aided by a son of Trinidad Neyra,
on her bed in the sala, in the presence of the
attesting witnesses, Dr. Moises B. Abad, Dr.
Eladio R. Aldecoa, and Atty. Alejandro M.
Panis, who signed in the presence of the
testatrix and of each other.
Father Teodoro Garcia was also present
at the signing of the will, at the request of
Encarnacion Neyra, and so was Trinidad
Neyra.
On November 4, 1942, due to a heart
attack as a consequence of Addison's disease,
perhaps, Encarnacion Neyra expired, at about
3 o'clock in the morning.
Oppositor Teodora Neyra,
her young daughter Ceferina de la Cruz, and
Presentacion Blanco, daughter of oppositor
Maria Jacobo Vda. de Blanco, practically
corroborated the testimony of the witnesses of
the petitioner, with reference to the signing of
documents, in the bedroom of Encarnacion
Neyra, on November 3, 1942.
Teodora Neyra, Presentacion Blanco
and Ceferina de la Cruz, witnesses for the
oppositors, testified, however, that when the
thumb mark of Encarnacion Neyra was affixed,
as stated above, to the document of
compromise in question, dated November 3,
1942, she was sleeping on her bed in the sala;
61
and that the attesting witnesses were not
present, as they were in the caida.
Page
 But Ceferina de la Cruz, witness for the
oppositors, also stated that the attesting
witnesses signed the documents thumb
marked by Encarnacion Neyra, in the sala near
her bed, thus contradicting herself and
Teodora Neyra and Presentacion Blanco.
Strange to say, Teodora Neyra,
Presentacion Blanco and Ceferina de la Cruz
also testified that Encarnacion Neyra's thumb
mark was affixed to the will, only in the morning
of November 4, 1942, by Trinidad Neyra and
Ildefonso del Barrio, when Encarnacion was
already dead.
The testimony of Dr. Dionisio Parulan,
alleged medical expert, as to the nature and
effects of Addison's disease, is absolutely
unreliable. He had never seen or talked to the
testatrix Encarnacion Neyra.
According to the medical authorities, the
cause or causes of the sleeping sickness,
known as Addison's disease, are not yet fully
known: that persons attacked by said decease
often live as long as ten (10) years after the
first attack, while others die after a few weeks
only, and that as the disease, progresses,
asthenia sets in, and from 80 per cent to 90 per
cent of the patients develop tuberculosis, and
complications of the heart also appear. (Cecil,
Textbook of Medicine, 3d ed., 1935, pp. 1250,
1252, 1253; MaCrae, Osler's Modern Medicine,
3d ed., Vol. V. pp. 272-279).
And it has been conclusively shown in
this case that the testatrix Encarnacion Neyra,
at the age of 48, died on November 4, 1942,
due to a heart attack, after an illness of about
two (2) years.
In connection with testamentary
capacity, in several cases, this court has
considered the testimony of witnesses, who
had known and talked to the testators, more
trustworthy than the testimony of alleged
medical experts.
Testamentary capacity is the capacity to
comprehend the nature of the transaction in
which the testator is engaged at the time, to
recollect the property to be disposed of, and
the persons who would naturally be supposed
to have claims upon the testator, and to
comprehend the manner in which the
instrument will distribute his property among
the objects of his bounty. (Bugnao vs. Ubag.
14 Phil., 163.)
Insomnia, in spite of the testimony of
two doctors who testified for the opponents to
the probate of a will, who stated that it tended
to destroy mental capacity, was held not to
affect the full possession of the mental faculties
deemed necessary and sufficient for its
execution. (Caguioa vs. Calderon, 20 Phil.,
400.) The testatrix was held to have
been compos mentis, in spite of the physician's
testimony to the contrary, to the effect that she
was very weak, being in the third or last stage
of tuberculosis. (Yap Tua vs. Yap Ca Kuan and
Yap Ca Llu, 27 Phil., 579.) The testimony
testimony of the attending physician that the
deceased was suffering from diabetes and had
been in a comatose for several days, prior to
his death, was held not sufficient to establish
testamentary incapacity, in view of the positive
statement of several credible witnesses that he
was conscious and able to understand what
said to him and to communicate his desires.
(Samson vs. Corrales Tan Quintin, 44 Phil.,
573.) Where the mind of the testator is in
perfectly sound condition, neither old age, nor
ill health, nor the fact that somebody had to
guide his hand in order that he might sign, is
sufficient to invalidate his will. (Amata and
Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and
also a few days after the execution of the will,
the testator intelligently and intelligibly
conversed with other persons, although lying
down and unable to move or stand up
unassisted, but could still effect the sale of
property belonging to him, these circumstances
show that the testator was in a perfectly sound
mental condition at the time of executing the
will. (Amata and Almojuela vs. Tablizo, 48
Phil., 485.)
Presentacion Blanco, in the course of
her cross-examination, frankly admitted that, in
the morning and also at about 6 o'clock in the
afternoon of November 3, 1942, Encarnacion
Neyra talked to her and that they understood
each other clearly, thus showing that the
testatrix was really of sound mind, at the time
of the signing and execution of the agreement
and will in question.
It may, therefore, be reasonably
concluded that the mental faculties of persons
suffering from Addison's disease, like the
testatrix in this case, remain unimpaired, partly
due to the fact that, on account of the sleep
they enjoy, they necessarily receive the benefit
of physical and mental rest. And that like
patients suffering from tuberculosis, insomnia
or diabetes, they preserve their mental
faculties until the moments of their death.
Judging by the authorities above cited,
the conclusion made the trial court that the
testatrix Encarnacion Neyra was of sound mind
and possessed testamentary capacity, at the
time of the execution of the will, cannot be
properly disturbed.
The oppositors also claim that the
attesting witnesses were not present, at the
time that the testatrix thumbed marked the will
in question, on her bed, in the sala of the
62
house, as they were allegedly in the caida. But
it has been fully shown that the attesting
Page
witnesses were present at the time of the
signing and execution of the agreement and
will in question, in the sala, where the testatrix
was lying on her bed. The true test is not
whether they actually saw each other, at the
time of the signing of the will, but whether they
might have seen each other sign, had they
chosen to do so; and the attesting witnesses
actually saw it in this case.
(Jaboneta vs. Gustilo, 5 Phil., 541.) And the
thumbmark placed by the testatrix on the will is
equivalent to her signature. (Yap Tua vs. Yap
Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
The oppositors as well as their principal
witnesses are all interested parties, as said
oppositors had been named legatees in the will
dated September 14, 1939, but eliminated from
the will dated November 3, 1942.
On the other hand, the witnesses for the
petitioner are all trustworthy men, who had
absolutely no interest in the final outcome of
this case. Two of them are ministers of the
Gospel, while the three attesting witnesses are
professional men of irreproachable character,
who had known and seen and talked to the
testatrix.
Furthermore, the testimony of the
oppositors and their witnesses, to the effect
that there could have been no reconciliation
between the two sisters, and that the thumb
mark of Encarnacion Neyra was affixed to the
document embodying the agreement, while
she was sleeping, on November 3, 1942, in
their presence; and that her thumb mark was
affixed to the will in question, when she was
already dead, in the morning of November 4,
1942, within their view is preposterous, to say
the least. Said testimony is contrary to
common sense. It violates all sense of
proportion. The oppositors and their witnesses
could not have told the truth; they have testified
to brazen falsehoods; and they are, therefore,
absolutely unworthy of belief. And to the
evidence of the oppositors is completely
applicable the rule falsus in uno, falsus in
omnibus. (Gonzales vs. Mauricio, 53 Phil., 728,
735.)
In the brief presented by counsel for the
oppositors and the appellants, to show the
alleged improbability of the reconciliation of the
two sisters and the execution of the will, dated
November 3, 1942, they have erroneously
placed great reliance on the facts that, up to
October 31, 1942, the two sisters Encarnacion
and Trinidad Neyra were bitter enemies. They
were banking evidently on the common belief
that the hatred of relatives is the most violent.
Dreadful indeed are the feuds of relatives, and
difficult the reconciliation. But they had
forgotten the fact that Encarnacion Neyra was
a religious and pious woman instructed in the
ancient virtues of Christian faith and hope and
charity, and that it was godly to forgive and
better still to forget.
It was most natural that there should
have been reconciliation between the two
sisters, Encarnacion and Trinidad Neyra, as
the latter is the nearest relative of the former,
her only sister of the whole blood. The
approach of imminent death must have evoked
in her the tenderest recollections of childhood.
And believing perhaps that her little triumphs
had not always been fair to her sister who in
fact, had had successively instituted two suits
against her, to recover what was her due, and
for which Encarnacion believed she must
atone, she finally decided upon reconciliation,
so that she might depart in peace.
The record shows that, of the two,
Encarnacion lived in greater opulence, and that
Trinidad had been demanding tenaciously her
share; and as a Christian woman, Encarnacion
must have known that no one has any right to
enrich himself unjustly, at the expense of
another. And it was, therefore, natural that
Encarnacion should desire reconciliation with
her sister Trinidad, and provide for her in her
last will and testament.
As for Eustaquio Mendoza, who,
according to the evidence, had served
Encarnacion Neyra for so many years and so
well, it was also natural that she should make
some provision for him, as gratitude is the
noblest sentiment that springs from the human
heart.
The conduct of Encarnacion Neyra, in
making altogether a new will, with new
beneficiaries named therein, including
principally her bitterest enemy of late, which is
completely incompatible with the will, dated
September 14, 1939, may really seem strange
and unusual; but, as it has been truly said,
above the logic of the head is the feeling in the
heart, and the heart has reasons of its own
which the head cannot always understand, as
in the case of intuitive knowledge of eternal
verity.
As Encarnacion Neyra felt the advent of
immortality, she naturally wanted to follow "the
path of the just, which is as the shining light
that shineth more and more unto the perfect
day," so that her memory may be blessed. As a
Christian woman, she must have loved justice,
mercy and truth and to follow the law, for this is
the whole duty of man.
In the present case, the court cannot
find any reason or justification to alter the
conclusions set forth in the decree appealed
from. This court will not reverse any findings of
fact by the trial court made upon conflicting
63
testimony and depending largely upon the
credibility of witnesses, who testified in the
Page
presence of the trial judge, unless the court
below failed to take into consideration some
material facts or circumstances, or to weigh
accurately all of the material facts and
circumstances presented to it for consideration.
After a careful consideration of the evidence
and the law of this case, we find it legally
impossible to sustain any of the errors assigned by
the appellants. The judgment appealed from is,
therefore, affirmed, with costs against the
appellants. So ordered.

64
Page
G.R. No. L-7801 April 13, 1956
Testate Estate of Dña. Perpetua A. Vda. de
Soriano.
DOLORES ALBORNOZ, peitioner.
ELIAS RACELA, claimant-appellant,
vs.
DOLORES ALBORNOZ and JOSE
ALBORNOZ, co-special
administrators oppositors-appellees.
LABRADOR, J.:
The present appeal refers to two claims
presented by Elias Racela against the estate of
the deceased Perpetua Vda. de Soriano and
which were dismissed by the trial court. The
first claim is based on a supposed sale of one
hectare of land for P1,000 executed by the
decedent on July 18, 1933 in favor of the
claimant. The second is based on another
supposed sale of another part of the
defendant's land for P1,000 also, in favor of the
claimant, made on September 23, 1933. The
supposed sales appear in two deeds marked
Exhibits "A" and "B". After the supposed sales
were made, the decedent sold the same
parcels of land in 1934 to one Soriano
Ballesteros, who succeeded in registering the
deed of sale in his favor. Claimant attempted to
register the deeds executed in his favor but the
decedent opposed registration. So claimant
brought a criminal action against the decedent
for estafa (Criminal Case No. 6406 of the Court
of First Instance of Ilocos Norte). The court
acquitted the decedent of the charge, a portion
of the decision and the dispositive part thereof
is as follows:
Analizados estos hechos, el Juzgado se
inclina a creer como asi cree que Elias
Racela no ha entregado ninguna
cantidad de dinero a la acusada como
pago de la venta, alegada por la
acusacion . . .
Es digna credito la pretension de la
acusada de que los dos escrituras
marcadas Exhibitos 'A' y 'B' han sido
otorgadas por ellasolamente para que
Elias Racela pudiera convencer a los
vecinos del barrio de Biding, Dingras,
Ilocos Norte, que la acusada podia
disponer librement de sus bienes? El
Juzgado fundandose en los hechos
arriba expuestos, es de opinion que si. .
. Este acto de la acusada a juicio del
Juzgado, es compatible con su
crecencia de que en ninguna ocasion
habia vendido terrenos a Elias Racela . .
. sino tambien a la version de los testigos
xxx xxx xxx
A la luz de las consideraciones de
hechos arriba apuntadas el Juzgado
duda de la verdad de la teoria de la
acusacion y, por ende, la acusada tiene
derecho a los beneficios de esta duda.
Pero esta conclusion del Juzgado no
priva a Elias Racela de su derecho de
presentar una accion civil contra la aqui
acusada, si se que todavia no estan
pagados honorarios por los servicios
prestados a la misma.
After the presentation of the plaintiff in the
court below, the Judge, upon motion of counsel
for the defendant, dismissed the action in the
following words:
It is seen from Ehibit '1' that the criminal
action for estafa against the deceased
Perpetua A. Vda. de Soriano was
founded on Exhibits 'A' and 'B' and 'C',
the deeds of sale, and the present claim
of the claimant is also founded on the
same exhibits with the exception of
Exhibit 'C' which was not presented by
the said claimant, having been
substituted by him with his own oral
testimony. Therefore, the inevitable
conclusion is that the acquittal of the
deceasd-accused, Perpetua Vda. de
Soriano, produces the effect of
exemption of her estafa from any civil
liability.
FOR THE FOREGOING, the
motion to dismiss is GRANTED, and the
claim of Elias Racela is DISMISSED.
WITHOUT COSTS.
It is against the above judgment that this
appeal has been prosecuted. Claimant-
appellant argues that the judgment of acquittal
in the criminal action was based on reasonable
doubt and therefore it cannot amount to a
judicial declaration "that the fact from which the
civil might arise did not exist." A study of the
judgment of acquittal in the said criminal action
readily discloses that the decedent did not sell
any land to Elias Racela and that the deeds of
sale Exhibits "A" and "B" were executed by the
decedent in order to enable Elias Racela to
convince the residents of a barrio that the
decedent could freely dispose of his properties.
Witness the following portions of the judgment,
Exhibits "1.
La unica cuestion a resolverse en esta
causa es la de si la acusada habia
vendido a Elias Racela las dos parcelas
de terreno que se describen los
exhibitos 'A' y 'B' respectivamente. Para
resolver esta cuestion el Juzgado
entiende que no debe atenerse
solamente a los mencionados exhibitos
de la defensa y el estado finaciero de la
65
acusada.
Page
 Analizados estos hechos, el Juzgado se
inclina a creer como asi cree que Elias
Racela no ha entregado ninguna
cantidad de dinero a la acusada como
pago de la venta alegada por la
acusacion; porque si fuese cierto el
hecho de que Elias Racela habia
entregado el dinero importe de cada
uno de los terrenos descritos en los
exhibitos 'A' y 'B', respectivamente, no
se coomprende como y porquese
habian puesto en el Exhibito 'B' las
palabras 'and services rendered": En
opinion del Juzgado estas palabras 'and
services rendered' puestas despues de
las palabras 'One Thousand Pesos
Philippine Currency to me' revelan que
Elias Racela en la ocasion en que se
redacto la escritura daba a entender
que lo que el habia pagado a la
acusada era el valor de sus servicios. Si
esto es el caso, Elias Racela al afirmar
en el dia de la vista de este causa que
el habia entregado dinero a la acusada
no ha dicho la verdad; y por tanto debe
estimarse por buena la teoria de la
acusada al efecto de que ella no habia
vendido ningun terreno a Elias Racela.
The theory upon which the present claim of
Elias Racela is based that the deceased sold
the parcels of land to Elias Racela and the
latter paid the deceased the price therefor or
P2,000. The above-quoted portions of the
decision clearly indicate that no actual sale
was made and that the deeds Exhibits "A" and
"B" were executed for another purpose and
were, therefore, simulated sales. The judgment
in the criminal action, therefore, contains an
express declaration that the basis of claimant's
action for P2,000, or the sales of said parcels
of land to the claimant and the receipt by the
decedent therefor for P2,000, did not exist.
Claimant's action is barred under section 1 (d),
Rule 107, which provide:
(d) Extinction of the penal action does
not carry with it extinction of the civil,
unless the extinction proceeds from a
declaration in a final judgment that the
fact from which the civil might arise did
not exist. . .
In view of the above conclusion, it is
unnecessary to consider the claim of the
claimant-appellant that he had submitted
sufficient evidence to sustain defendant's
liability. The judgment appealed from is hereby
affirmed, with costs against the claimant.
66
Page
 ART 800
TORRES VS LOPEZ (ART 799)
IN THE MATTER OF THE TESTATE ESTATE
OF MARIE GARNIER GARREAU. LIRIO
PFANNENSCHMIDT RAMIREZ, petitioner-
appellant,
vs.
JOSE MA. RAMIREZ, oppositor-appellee.
MAKALINTAL, J.:
At issue in this appeal is the due
execution of the last will and testament of
Maria Gamier Garreau, which was denied
probate by the Court of First Instance of Manila
in its order of August 15, 1961 (Special
Proceeding No. 39365) on the ground of the
testatrix' lack of testamentary capacity.
Maria Gamier Garreau, widow of Ramon
Ramirez, was a native of Asnier Paris, France,
but a Filipino citizen residing in Madrid, Spain,
where she died childless at the age of 84 on
January 11, 1959. The will in question was an
"open" one, executed before a notary public in
Madrid on May 24, 1958, and instituting her
niece Lirio (Lily) Pfannenschmidt now
appellant, as sole and universal heir. Lirio is
one of the four children of Jose Ramirez,
brother of the testatrix husband Ramon, the
other three being Elsa, Esperanza and
Horacio. Ramon had a half-brother, Jorge P.
Ramirez, whose son, Jose Maria Ramirez, now
appellee, opposed the petition for probate filed
by Urio on February 20, 1959, alleging in his
opposition, inter alia, that there was a prior will
executed by the testatrix in Manila in 1949. The
photostat copy of that will, marked in the record
as Exhibit D and Exhibit 2-J, shows that the
testatrix instituted her husband as her universal
'heir, and in the event that he should
predecease her (which he did), named her
niece Lily Ramirez and her nephews Horacio
Ramirez and Jose Ma. Ramirez as substitute
heirs to all her properties in equal shares. This
previous will, however, is not involved in this
case, and has been referred to by the parties
only in relation to the background
circumstances concerning the execution of the
"open" will in 1958.
Ironically enough — and certainly not
without some overtones of poetic justice — the
order of the trial court denying probate is based
in no small part on a number of letters written
by the petitioner herself, in which she used
quite strong terms to describe the mental
infirmity of the testatrix. Those letters were
written by her in 1956 and 1957 to her uncle,
Jose Eugenio Ramirez de la Cavada, another
brother of the testatrix husband, Ramon
Ramirez. Even before then, however, the
testatrix' mental condition was already the
object of serious concern among her close
relatives. The testimony of Jose Eugenio
Ramirez, given in the form of deposition and
submitted as Exhibit 3, discloses the following
facts:
He arrived in Madrid in 1954. His niece
Lily who was then residing there, came to him
and said that she could not accept the fact that
Jose Maria Ramirez (herein oppositor-
appellee) had been named as heir in the will of
her aunt, not being a member of the same
family group. Lily, obviously referring to the
1949 will, then suggested to her uncle that he
do something to correct the same, which
suggestion he turned down, pointing out that
the testatrix had the right to name her nephew
Jose as one of her heirs. When he arrived in
Madrid he found his sister-in-law "ya una mujer
muy incapacitada." In 1955 he consulted a
physician, Dr. Romero de Arcos and asked him
to examine her. Dr. de Arcos had been treating
the patient for various ailments, and it was he
who suggested, after conducting his
examination, that Dr. Jose Germain, competent
specialist, be called to make his own diagnosis.
The medical opinions of these two doctors will
be discussed later. But from his own
observations, Jose Eugenio Ramirez declared
that his sister-in-law was even then mentally
incapacitated, citing by way of example her
attitude and personal reaction when her
husband died in 1956. She was present at his
death and saw his body just before he was
buried; but when she went to her room after
the funeral and saw that his bed was no longer
there she came out crying asking where her
husband was and saying that she was going to
look for him. She had totally forgotten that he
had passed away. Apart from that, she was
easily susceptible to any suggestion from
others, particularly those close to her, and after
doing what she was told would promptly forget
all about it.
Another deponent, Julio Escribano
Langa, a resident of Madrid who had known
the spouses Ramon Ramirez and Maria
Gamier Garreau for about nine years, testified
to the same mental condition of the testatrix:
her susceptibility to another person's influence;
her lack of memory for recent events, her lack
of understanding of, or volition for deciding,
certain matters such as the making of a last
will.
Dr. Manuel Ramon de Arcos was first
called to the Ramirez household in 1953 to
treat Ramon Ramirez, and after that his wife,
on a number of occasions until 1958. The
material statements in his deposition are as
67
follows:
Page
 ... Alla por 1953 debia tener 77 o 78
años de edad, y en esa señora se
notaba cada vez mas falta de memoria,
eso mucho, y a veces tenia cosas
extranas, como imaginarse que habia
hecho un viaje que no habia hecho o de
escribir cosas como sobre la casa de un
cunado suyo en Palma donde nunca
habia estado, y con el tiempo fue
siguiendo la cosa asi pero motives de
alarma en cuanto a su vida no.
xxx xxx xxx
Desde hacia tiempo ya que esta senora
no tenia lucidez mental y antes se me
pidio que yo certificara de su estado
exacto y yo me encontre poco
competente para ello, y efectivamente
due que yo queria Ilevar adelante una
exploracion en el sentido neurologico y
yo necesitaba que alguien que se
dedique a esa especialidad venga
conmigo y entonces se Ilamano al Dr.
Germain, y esto fue en marzo de 1955.
El diagnostico a que Ilegamos, que
despues fue confirmado, era de una
involucion cerebral senil que Ilamanos a
una involucion regresiva debido a
defectos cerebrales de arteriosclerosis,
y cuando se tiene eso cuando las cosas
son asi realmente, la enfermedad no
retrocede y la involucion avanza; es
posible que algana vez yo la saludara y
ella me contestara con mas afecto y
pareciese que estaba mejor pero en
realidad la involucion avanzaba como
es normal.
Dr. Jose Germain, who had been called in
consultation by Dr. de Arcos in April 1955,
presented an impressivecurriculum
vitae attesting to his qualifications as a
psychiatrist. The conclusions he arrived at after
his examination of the patient are set forth in
his deposition as follows:
xxx xxx xxx
P. Quiere usted explicar la naturalization de los
servicios prestados por usted?
R. Sencillamente estudiar a la enferma bajo el
punto de vista psiquiatrico y analizar sus
reacciones ante las preguntas normales de
orientation del tiempo y del espacio y
contestaciones a una serie de pruebas o tests,
y sobre esto forme un juicio que transmiti al Dr.
Romero.
P. Que juicio forms usted?
R. Que esta senora padecia un proceso
arterioesclerotic cerebral con alteracion del
pensamiento y de la conducta que evidenciaba
un estado de demencia presenila en evolucion.
P. Ese estado de demencia presenilla la
incapacitaba para realizar actos como un
testamento con lucidez?
R. Indudablemente.
P. La evolucion de la enfermedad hace
suponer posible que sea curable?
R. No, señor, es un proceso irreversible y
progresivo.
P. Que experiencias hizo usted con la
enferma?
R. No recuerdo, pero eran las usuales.
P. Tenia memoria?
R. Si señor, pero perturbada.
P. Gravemente perturbada?
R. Perturbada para las circumstancias
normales de la vida.
P. Un sujeto en esas condiciones, tiene
voluntad libre o es facilmente presionable de
ser llevado por personas extranas a
resoluciones no personales del enfermo?
R. Todos estos enfermos lo que tienen es una
disminucion del criterio personal y, por tanto,
son susceptibles de ser influenciados.
P. Normalmente por personal de su intimidad?
R. Por cualquier persona, el primero que
venga.
P. Ha expedido usted un certificado?
R. Si senor.
P. Podia esta persona tener intervalos lucidos
para que fueran validos?
R. Repito que es un proceso irreversible y, por
tanto, la sintomatologia tenia que seguir mas o
menos en el primer plano de su personalidad.
SR. GALLARDON: Nada mas.
xxx xxx xxx
P. Pero usted conoce los requisitos para una
incapacitacion?
R. Si senor.
P. Esta senora incurria en todos los elementos
para ser incapacitada totalmente?
R. Si senor.
P. Al reconocer a ella, tenia usted algun
prejuicio?
R. No, senor.
P. Usted dijo que era una enfermedad
irreversible, es decir que no tiene curacion?
R. Exacto.
P. Pero puede mejorarse?
R. No, senor, irreversible y progresiva es un
proceso degenerativo cerebral.
In the light of the foregoing expert
medical opinions the letters written by herein
appellant to her uncle, Jose Eugenio Ramirez,
assume a vital significance on the issue of
testamentary capacity, and of her own
credibility as proponent of the probate of the
will. In her letter of January 8, 1956 (Exh. 2-A)
she wrote:
68
I am trying to do all I can for poor
Tia Marie who refuses to be
Page
 helped. Poor dear she is getting
worse and worse everyday. Her
mind does not register anything y
es terriblemente dura de cabeza.
In another letter (Exh. 2-B) dated July 15,
1956, she said to her uncle:
I think it is my duty to look after
her (Doña Marie) now that she is
alone especially since the poor
dear is completely in Irene's
hands. *
You will remember that
Irene was with them when the
thousands of pesos the Tios had
for a rainy day were spent in two
shakes of a lamb's tail.
Appellant's letter of January 17, 1957
(Exh. 3-C) contained the following postcript:
P.S. Everyday several
times a day she (Doña Marie)
tells me she is going back to
Paris. This morning she asked
me where Tio Ramon (who had
died the previous year) was.
On January 29, 1957 appellant again
wrote a letter to her uncle, in which she said:
Tia Marie has completely
forgotten Irene from the second
day she left.
Irene must have told Tia
Marie to ask Mr. Collard for the
40,000 telling her that with that
money they would go to Paris
and if Mr. Collard would have had
the money to send, she would
have kept it for herself, as Tia
Marie would have forgotten about
the money no sooner having
collected it. Tia Marie signed for
the money I went to collect and
when I came back from the bank
she did not ask me for it. She
must have done that with Irene.
Appellants, having suspected the maid
Irene of taking advantage of Doña Marie's
susceptibility to extraneous influence,
succeeded in leaving her dismissed from the
service; and Doña Maria had "completely
forgotten (her) from the second day after she
left."
Such was the testatrix' mental condition
that as early as 1956 appellant, in her letter of
January 8, told her uncle that she was thinking
of having her aunt judicially pronounced
incapacitated and asked him to send her "the
papers of the doctors who declared Tios
Ramon and Marie incapaces."
Jose M. Cavanna, the Philippine
administrator of the family of the testatrix, had
the same idea, and so expressed it in his letter
to appellant (Exh. 3-F) dated May 4, 1957,
making reference to the fact that the testatrix
had very little memory or almost none at all. He
had deposited for her account in a bank in
Madrid the sum of 100,000pesetas so that she
could draw regularly thereon which she did.
However, when after a year he again went to
Madrid Doña Marie, in the presence of her
brother-in-law, Jose Eugenio Ramirez, denied
ever having received any money from
Cavanna. Referring to that incident, Cavanna
continued in his letter to appellant:
Recordandoles la suma que les habia
dejado en mi visita el ano anterior, me lo
negaron y aseguraron no haber recibido
de mi ninguna cantidad de dinero. Estaba
entonces presente D. Pepe Eugenio que
habiendo oido sus insistentes protestas de
no haber recibido el ano anterior cantidad
alguna mia a exepcion de los giros
mensuales, note que llego dudar de mis
afirmaciones y entonces le invite ir al
Banco en donde habia hecho el deposito
para cerciorarse de aquellos hechos, en
que trataban de negar mis afirmaciones. Al
dia siguiente nos constituimos en el Banco
D. Pepe Eugenio y yo y alli se corroboro
todas mis afirmaciones y quedo probada la
poca o casi ninguna memoria que existia
en Da Marie, en vista del hecho de que
ella misma habia firmado todos los
cheques y no pudo seguir negando el
hecho, confeso que se habia olvidado y no
se volvio a hablar de ese asunto. Pero
este hecho dio lugar que desde entonces
los familiares comprendiendo el exceso de
gastos que hacia y la suma tan gruesa que
se habia gastado en aquel ano acordaron
designar como en efecto se designo a Dn.
Pepe Eugenio para que actuara en sus
intereses en Espana y les enviara los
fondos que se recibian de Manila en forma
tal que no les hiciera falta nada para que
no se les perdiera tantos fondos, pues
Ilego a suspecharse de una sirvienta que
entonces tenian que resultaba mas que
sirvienta una ama de compania. Tambien
entonces habia hecho constar que se les
enviaba trimestralmente las cuentas de
sus fondos por duplicado con objeto de
que despues de estudiada, dieran su
conformidad y devolviesen uno de los
ejemplares. No solo no devolvian el
duplicado sino que no acusaban recibo de
ella y en muchisimas ocasiones no sabian
en donde lo habia dejado. En otra
occasion anterior a estos acontecimientos
tambien me aseguraron no haber recibido
uno de los giros de $300.00 enviados y
hechas las correspondientes
69
avariguaciones resulto haber sido
cobrador por Da Marie.
Page
 Legal a pensarse la conveniencia de
promover un expediente de tutela pero no
se Ilevo a cabo para que no sufrieran en
vida la vajacion de ser judicialmente
declarados incapacitados por su avanza
da edad.
Lamenting the fact that her aunt was
"completely in Irene's hands," and that "Irene
has taken complete possession of every penny
and gives Tia Marie no account of
anything," * appellant expressed herself quite
strongly in this wise:
After all if the worst comes to the
worst it is better that I who am a
member of the family should
cheat Tia Marie rather than an
absolute stranger.
The same fear was reiterated in her letter of
February 2, 1957 (Exh. 3-E);
... Que chasco y disgusto
tendriamos si resultase Irene la
heredera de los Tios. Cosa muy
posible conociendo las cosas que
ha hecho y lo engañados que
tenia a los pobres Tios.
A subsequent letter of appellant, dated April 9,
1957 (Exh. 2-K), this time addressed to her
brother Horacio, reveals a significant
development. Apparently the 1949 will, wherein
Jose Maria Ramirez, appellee herein, was
mentioned as one of the heirs, had been
changed with a new one eliminating him.
Appellant wrote to her brother:
Enclosed am sending Tia Marie's letter
to you. As you will note the date is Feb.
2nd. I am doing this so that the letter
appears to have been written before her
new will. Keep her letter where it will be
clear to see that the reason why Boby
(appellee) does not appear in her new
will is because he intended to take Tio
Ramon to the "Tribunates," so if Boby by
any chance tries to contend it you will
have her letter as a farther proof that is
what she had every intention to do. So
Cillo (Horacio) for goodness sake keep
it in a safe or in the bank until you will
have use of it. Tear this letter no sooner
read in case it falls into wrong hands.
The less people know of the new will the
better in case action should be taken
against it.
The foregoing letter appears quite
conspiratorial, as, though the will referred to in
it had been obtained by appellant in order to
cut off Boby (appellee) from any share in the
inheritance, and the enclosed letter of the
testatrix had been antedated to February 2 so
that it would appear "to have been written
before her new will." For some reason not
disclosed in the record, that will never came to
light. Evidently Horacio was also an heir
therein, but then was subsequently eliminated
in the 1958 will which was actually presented
for probate by appellant.
The evidence hereinabove discussed,
cumulatively considered, leads to the definite
conclusion that Marie Gamier Garreau was
indeed mentally incapacitated to make a will,
that is, "to know the nature of the estate to be
disposed of, the proper objects of (her) bounty,
and the character of the testamentary act" (Art.
799, Civil Code). As early as 1955, when she
was examined by the family physician, Dr.
Romero de Arcos and by a qualified
psychiatrist, Dr. Jose Germain, she was
already suffering from pre-senile dementia, a
degenerative mental, infirmity that was
described by them as "a progressive and
irreversible process." The manifestations of this
condition are amply illustrated in the letters
written by appellant herself as well as in the
testimony of her uncle, Jose Eugenio Ramirez.
In fact these two were convinced that the
testatrix should be placed under judicial
guardianship, and actually took the initial steps
towards that end. Appellant's subsequent turn-
about in her opinion of the testatrix' mental
condition is of course understandable,
considering that in the will she is named as
sole and universal heir. But precisely for this
reason not much reliance can be placed upon
her testimony to the effect that the testatrix was
possessed of the necessary testamentary
capacity.
The most pertinent evidence in behalf of
appellant is the testimony of the notary public
before whom the will in question was executed
and the testimony of two of the three
instrumental witnesses. The notary public,
Braulio Nolasco Carrasquedo, gave the
following statements on the subject of the
testatrix' mental condition:
17. Sabe usted cual era el estado mental de
dicha senora cuando otorgo el testamento
anexo 1?
R. A mi juicio estaba bien.
18. Haga usted el favor de explicar su
contestacion a la pregunta anterior.
R. No selo que quieren decir con esa pregunta.
Yom juzgo que ella estaba capacitada y hay
una clausula all de que esta capacitada
legalmente.
19. Diga usted si Doña Maria Garnier Garreau
se daba cuenta de que estaba otorgando un
testamento?
R. Se contesta con la repuesta anterior, pues
si estaba capacitada sabia lo que hacia.
70
20. Diga usted si la testadora recordaba sus
propriedades?
Page
R. Supongo que si aunque el en testamento no
se permite a menos que se hagan legados,
pero aqui es un testamento en terminos
generales.
21. Diga usted si la testadora recordaba sus
parientes?
R. No puedo decir eso pero ella estaba con su
sobrina, aunque supongo que recordara a sus
parientes.
As may be noted, the foregoing
statements of the notary public are far from
satisfactory. They are vague and evasive, and
tend to beg the very issue. Thus the witness
could not say, but merely supposed, that the
testatrix had a recollection of her properties or
of the relatives who would logically inherit from
her and when asked to explain his answer to
the question concerning her mental state, he
simply referred to the certification in the will on
that point. It would seem that he was aware
that he had no sufficient basis for a categorical
opinion on the subject, and so declined to fully
commit himself.
Manuel Gomez Tortajada was one of
the instrumental witnesses. He affirmed that
the testatrix was in "perfect" mental condition at
the time of the execution of the will; that she
knew "perfectly" that he was executing a will;
that on another occasion she had even told
him about certain properties of hers, and about
her relatives, who were a niece and a sister of
that niece. The testimony of this witness on
deposition gives the distinct impression of
officiousness, of pretending to be more
intimately familiar with the affairs of the
testatrix than their casual acquaintance
justified. In any case his affirmation of the
testatrix "perfect" mental condition was so
obviously an exaggeration in the face of the
clear and convincing evidence to the contrary
that it only serves to weaken his credibility.
The other instrumental witness was
Antonio Fernandez Caballero. He likewise
affirmed the good condition of the testatrix'
mental faculties, saying that she had a
recollection of her properties as well as of her
relatives. The affirmation is rather strange' not
to say incredible, considering that he met the
testatrix for the first and only time in the office
of the notary public on the occasion of the
execution of the will, and that all that took place
then was that the said will was read by the
notary and then signed by the testatrix, the
witnesses and the notary himself. And
according to the latter he did not ask her
anything about her properties or her relatives.
Indeed this instrumental witness admitted that
he did not understand the language spoken by
the testatrix on that occasion:
R. Yo quicro decir que esta senora como
hablaba algo diferente de nosotros todo lo que
pudiera hablar no me entraba bien si ella
hablaba con la sobrina, pero el lenguaje de
ellas no lo entendia y no se si podian hablar de
propiedades u otras cosas.
P. But did the testatrix talk about her relatives
on that occasion?
R . Yo oi que ella hablaba con la senorita que
le acompafiaba y creo que tenian parentezco
pero hablaban en el idioma de ellas.
Three additional witnesses, by way of
rebuttal, were presented by appellant. The first
was Dr. Suils Perez, whose deposition is
marked Exhibit Q. He said that as a neurologist
and a psychiatrist he was called several times
in 1957 to Marie Garnier Garreau. His
diagnosis was that she had a "brain lesion"
"(lesion en el cerebro), but had a mentality
corresponding to her age. "Era una mujer que
en interes o atencion dejaba mucho que
desear salvo en las cosas que le interesaban
... En un test que se hubiera hecho con ella
hubieramos visto resultados contradictorias
segun el momento de atencion en que se lo
hicieramos que era muy variable."
The foregoing testimony leaves much to
he desired insofar as the issue of testamentary
capacity is concerned: no reference
whatsoever was made therein to the very
elements of that issue, such as capacity to
comprehend the nature of the testamentary
act, the recollection of the properties to be
disposed of and of the relatives who might
have a claim upon the testatrix' generosity.
Salustiano Reyero, a priest, was the
second rebuttal witness for appellant, whose
testimony was given in the form of deposition.
The testatrix, he said, was in possession of her
mental faculties, reacted well to questions
directed at her, and even told him that she had
a house in Paris. His impression was that she
was not susceptible to suggestion coming from
or influence exerted by other persons.
However, he qualified his assertions as follows:
algunos ratos parecia que estaba alelada,
"algunes veces note" eso cuando fui, y estaba
como si no tuviera interest." Asked whether the
testatrix remembered things normally, this
witness answered: "Algunas veces no, cuando
estaba ya Lily con ella que fue cuando la vi,
porque no iba a ver a la difunta precisamente
sino a Lily, y despues cuando volvia yo ya no
se acordaba de que habia estado yo alli."
Gonzalo Conejos Fernandez was the
third rebuttal witness, also by deposition. A
lawyer by profession, he said he was consulted
by the testatrix, after he came to know her in
71
1956, about certain personal matters, among
them the revocation of a power-of-attorney
Page
given to Jose M. Cavanna and the designation
of another in his place as well as the
proceedings for the adoption of appellant by
the said testatrix. She consulted him also about
what kinds of wills were permitted under the
Spanish law, and told him that she had
previously made a will in Manila where she
was leaving her properties to her niece Lily, to
a brother or a sister of the latter and to a "senor
Ramirez," (evidently referring to appellee), but
that because of certain actuations of appellee
which did not please her she did not consider
him deserving of being her heir. The witness
was present at the execution of the will in
question on May 24, 1958, and he noted, he
said, that she was aware of the nature of the
act in which she was engaged and that she
had a recollection of her relatives and
properties. From the tenor of his testimony the
testatrix was a completely normal person
during the period of their acquaintance; she
was never absent-minded (alelada); and he did
not know that she was suffering from cerebral
arteriosclerosis or from pre-senile dementia.
The testimony of this witness was not
given weight by the trial court. It does suffer
from the view point of credibility. He was
presented as a rebuttal witness, who had been
present during the taking of the depositions of
the previous witnesses for appellant. He was
therefore in a position to cure, as he apparently
tried to do, the weaknesses in their statements.
Although he was present when the will was
executed, he actually remained in another
room, the "antesala," which was separated by
a glass partition from the room where the
testatrix, the notary public and the instrumental
witnesses transacted the business at hand.
The witness was quite elaborate about
the motive behind the execution of the new will
making appellant the sole heir. He said:
... esta Senora (testatrix) me dijo que
tenia otorgado un testamento en Manila
distribuyendo la herencia entre Lily, una
hermana o hermano, y un Señor
Ramirez (appellee), y que el motive de
decidir que toda su herencia fuera de
Lily, rectificando su anterior testamento,
era debido aparte de las
consideraciones de tipo afectivo a que
me he referido al hecho de que ella
estuvo casada con un Senor Ramirez,
hijo natural de su padre, y que este
Senor tenia un hijo legitimo, y a pesar
de Ilevarse en buenas relaciones,
cuando murio el hijo (evidently referring
to appellee) de este hijo legitime quiso
anular las disposiciones de su padre
que no distinguio entre Ia condicion
natural or legitimo, y por esta razon, a
quien habia procedido de esa forma,
que era sobrino de la difunta no le
consideraba acreedora ser heredero de
ella.
If the foregoing were true, and had indeed
been confided to the witness by the testatrix, it
is strange that she should cut off from her new
will not only the appellee but also the other
nephew, Horacio Ramirez, appellant's full
brother who was one of the heirs mentioned in
the previous will executed in Manila and
against whom the testatrix entertained no
grievance.
The issue here is essentially one of fact,
and involves an appraisal of the conflicting
evidence presented by the parties. That issue
was addressed in the first instance to the trial
Judge, and we cannot say that his conclusion
as to the testamentary incapacity of the
testatrix is erroneous. It is based mainly on
expert medical testimony to the effect that her
mental infirmity was observed by the family
physician as far back as 1953 and confirmed in
1955 by a competent psychiatrist, who
described the process of the mental
degeneration as progressive and irreversible;
on the written admissions and declarations of
appellant herself, who would have no motive
then to falsify the facts; and on the testimony of
the testatrix' brother-in-law, Jose Eugenio
Ramirez. On the question of credibility, we find
no ground to disregard such evidence in favor
of the vague, inconclusive statements of the
notary public who authenticated the will and of
the two instrumental witnesses, nor even of the
testimony of the rebuttal witnesses, the more
categorical character of whose affirmations
only serve to weaken their credibility,
conflicting as they do not only with the
evidence for appellee but also with that given
by the other witnesses for appellant.
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the order appealed from
is affirmed, with costs against appellant.
Footnotes
* Irene was the maid of the
testatrix.
** Exh. 2-B, letter of July 15,
1956, addressed to Jose Eugenio
Ramirez.
72
Page
G.R. No. L-18498 March 30, 1967
TESTATE ESTATE OF VITO BORROMEO.
JOSE H. JUNQUERA, petitioner-appellee,
vs.
CRISPIN BORROMEO, ET AL., oppositors-
appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-
appellant.
Benjamin A. Rallon for oppositor-appellant
Fortunato Borromeo.
Crispen Baizas and Associates for heirs
oppositors-appellants Tomas Borromeo and
Amelia Borromeo.
Office of the Solicitor General for intervenor
oppositor-appellant Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs
oppositors-appellants Crispin Borromeo,
Teofilo Borromeo, et al.
Filiberto Leonardo for petitioner-appellee.
DIZON, J.:
Vito Borromeo, a widower and permanent
resident of the City of Cebu, died on March 13,
1952, in Parañaque, Rizal, at the age of 88
years, without forced heirs but leaving
extensive properties in the province of Cebu.
On April 19 of the same year, Jose H.
Junquera, filed with the Court of First Instance
of said province a petition for the probate of a
one page document as the last will left by said
deceased, devising all his properties to Tomas,
Fortunato and Amelia, all surnamed Borromeo,
in equal and undivided shares, and designating
Junquera as executor thereof (Special
Proceedings No. 916-R). The document —
now in the record as Exhibit "A" — was dated
May 17, 1946, drafted in Spanish, and
allegedly signed, and thumbmarked by said
deceased, in the presence of Dr. Cornelio G.
Gandionco, Eusebio Cabiluna and Filiberto
Leonardo as attesting witnesses. On June 14,
1952, the probate court appointed Junquera as
special administrator of the estate.
On November 14 of the same year, Teofilo
Borromeo filed an opposition to the probate of
the will based on the following grounds: (1) that
the formalities required by law had not been
complied with; (2) that the testator was
mentally incapable of making a will at the time
of its execution; (3) that the will was procured
by undue and improper influence, on the part
of the beneficiaries and/or some other person;
(4) that the signature of the testator was
procured by fraud; and (5) that the testator
acted by mistake or did not intend the
instrument he signed to be his will at the time
he affixed his signature thereto.
Upon motion of the abovenamed oppositor, on
June 9, 1953, the Court removed Junquera as
special administrator and appointed Dr.
Patricio Beltran in his place.
On November 27, 1953, Vitaliana Borromeo, a
niece of the deceased, filed her own opposition
to the probate of the will, on the ground that the
signature "Vito Borromeo" appearing thereon
was a forgery. Other oppositions were
subsequently filed by Patrocinio Borromeo de
Tabotabo (her opposition was later withdrawn),
Lilia Morre de Tabotabo, Lamberto Morre,
Patricia Morre de Ranario, Aurora Morre de
Borromeo, Ramon Ocampo, Isagani Morre and
Rosario Morre, invoking substantially the same
grounds mentioned heretofore.
Meanwhile, Tomas, Amelia and Fortunato
Borromeo, manifestly on behalf of the "Cebu
Arcade Company, T. L. Borromeo y Cia.", a
duly organized partnership controlled by them,
filed a motion to exclude from the inventory of
the Estate previously filed by the new special
administrator, thirteen parcels of land situated
in the City of Cebu with a total area of 2,148
square meters, alleging that during his lifetime
the deceased testator had sold said lots to
them, as evidenced by the document now in
the record as Exhibit F-1 executed on May 17,
1945, confirming the alleged previous sale.
After due hearing, the court, in its order of July
16, 1954, denied the motion for exclusion,
ruling that movants' remedy was to file a
separate accion reivindicatoria against the
administrator.
On October 28, 1955, the Republic of the
Philippines filed a motion for leave to intervene
and join the oppositors in contesting the
probate of the will, on the ground that, should
the estate be adjudicated the latter by
intestacy, it stood to collect a considerable
amount by way of estate and inheritance taxes.
In its order of December 10 of the same year,
the Court allowed the intervention.
After a prolonged trial, on May 28, 1960, the
Court rendered a decision denying the probate
of the will and declaring itself without
jurisdiction to pass upon the question of
ownership over the thirteen lots which the
Cebu Arcade etc. claimed as its own. All the
parties appealed — the proponents of the will
from the portion of the decision denying
probate, and the oppositors and the Republic
73
of the Philippines, from that portion thereof
where the court refused to decide the question
Page
of ownership of the thirteen lots already
mentioned.
The proponents of the disputed will, mainly
with the testimony of the three attesting
witnesses, Cornelio Gandionco, Filiberto
Leonardo and Eusebio Cabiluna, sought to
prove the following facts:
In the morning of May 17, 1945, Tomas
Borromeo, complying with the request of Vito
Borromeo, went to the house of Atty. Filiberto
Leonardo to request him to be a witness at the
execution of the latter's last will. Dr. Cornelio
Gandionco, who at the time happened to be in
the house of Leonardo, was likewise requested
to act as such. Together, the three went to the
residence of Vito Borromeo at Ramos Street,
Cebu City. Upon their arrival the third witness,
Eusebio Cabiluna, who was living on the
ground floor of the house, was asked to come
upstairs. Thereafter, in their presence, Vito
Borromeo executed first, the document Exhibit
"F" (deed of confirmation of an alleged
previous sale to Cebu Arcade Company, T. L.
Borromeo y Cia.) witnessed by Gandionco and
Cabiluna. Later, Vito Borromeo, being of sound
and disposing mind, and without pressure or
influence exerted on him, dictated the
substance of his will to Tomas Borromeo, who
in turn typewrote it in proper legal language.
The document was then read by Vito
Borromeo, who later signed and thumbmarked
it (Exhibit "A") and carbon copies thereof
(Exhibits "E" and "K") in the presence of the
attesting witnesses, who, in turn, signed the
will and its copies in the presence of Vito
Borromeo and of each other.
Proponents also placed the Rev. Fr. Julio
Corres, a Spanish Catholic priest who was the
confessor of Vito Borromeo from 1942 to 1946,
the Rev. Fr. Sergio Alfafara, who was his
confessor from 1946 to 1947, and Vicenta
Mañacap, a mid-wife who lived in the testator's
house and had served him from May 1945 up
to his death on March 30, 1952 on the witness
stand. The gist of their testimony is to the effect
that at the time of the execution of the will, Vito
Borromeo was still strong and could move
around freely with the aid of a cane; that he
was still mentally alert and was a man of strong
will; that his right hand was unimpaired and he
could write with it unaided; that as a matter of
fact — according to Vicenta Mañacap — he
still wrote personal letters to Tomas Borromeo,
could eat by himself and even played the
piano.
On the other hand, the oppositors presented
several witnesses who testified that the
signatures purporting to be those of Vito
Borromeo on the document Exhibit "A" and its
copies were forgeries; that they were too good
and too perfect signatures and, therefore, quite
impossible for the deceased — an ailing man
already 82 years old on May 17, 1945 — to
write; that he was found "positive for bacillus
leprosy" by Dr. Antonio Garcia as early as
1926 or 1927, having been treated for it
consistently by injections of chaulmoogra oil
administered by Dr. Max Borromeo and Dr.
Cornelio Gandionco; that Vito Borromeo's
usual signatures during his better days had
always been characterized by certain
flourishes, technically called "rubric"; that Vito
Borromeo had also reared and educated two of
the oppositors, Crispin Borromeo and the late
Teofilo Borromeo and there was no
conceivable reason why they were left out in
the will, if any such will had really been made
by him knowingly; that the testamentary
witness Cornelio Gandionco, is a nephew of
the other witness, Filiberto Leonardo, and was
the fiance of Angeles Borromeo, a sister of
Tomas Borromeo, one of the instituted heirs;
that the third testamentary witness, Eusebio
Cabiluna is the real father of Fortunato
Borromeo, another instituted heir, who
admittedly grew up and was reared by Vito
Borromeo and his wife Juliana Evangelista
since he was barely three months; that Amelia
Borromeo, the third instituted heir, is a younger
sister of Tomas Borromeo and dependent upon
him; that on May 17, 1945, the deceased's
leprosy was so far advanced that the fingers of
his right hand were already hardened and
atrophied, this making it difficult, if not
impossible, for him to write; and that on the
same date, his sense of hearing and his
eyesight had been considerably impaired, his
eyes being always watery due to the progress
of his leprosy.
The oppositors also presented Felipe Logan of
the National Bureau of Investigation and Jose
G. Villanueva, as handwriting experts, who
testified, after examining the supposed
signatures of the deceased in Exhibit "A" and
comparing them with his accepted standard
signatures, that the questioned signatures
were forgeries. The proponents, however,
presented their own handwriting expert, Martin
Ramos, who testified to the contrary.
The trial court refused to believe the testimony
of the attesting witnesses and, as a result,
denied the petition for probate, because, in its
opinion, they appeared not to be "wholly
disinterested persons" and because of the
74
serious discrepancies in their testimonies with
respect to the number of copies made of the
Page
disputed document. The court also found that
the physical condition of the deceased at the
time of the execution of the questioned
document was such that it was highly
improbable, if not impossible, for him to have
affixed his signatures on the documents
Exhibits A, E and K in the spontaneous and
excellent manner they appear to have been
written. Thus, the court was also led to believe
the testimony of the handwriting experts for
oppositors, — adverse to the genuineness of
the signatures of Vito Borromeo on the
questioned document — more than that of the
handwriting expert presented by the
proponents of the will.
It seems clear, therefore, that the main issue to
be decided in the present appeal is whether or
not the evidence of record is sufficient to prove
the due execution of the will in
question.1äwphï1.ñët
It must be conceded that in this jurisdiction, the
subscribing witnesses to a contested will are
regarded as the best witnesses in connection
with its due execution. It is similarly true,
however, that to deserve full credit, their test,
testimony must be reasonable and unbiased,
and that, as in the case of any other witness,
their testimony may be overcome by any
competent evidence — direct or circumstantial
(Board, etc. vs. Shasser, 10 Kan. 585, 168
Pac. 836 [1917]).
It is also an appellate practice of long standing
in this jurisdiction to accord great weight to the
findings of fact made by the trial court and not
to disturb them unless said court had failed to
consider material facts and circumstances or
had given undue weight to, or misconstrued
the testimony of particular witnesses, the
reason for this being that the trial judge had full
opportunity to hear and observe the conduct
and demeanor of the witnesses while testifying
and was consequently in a better position than
the reviewing court to determine the question
of their credibility. While this is not applicable to
the present case because His Honor, the judge
who penned the appealed decision was not the
same judge before whom the evidence of the
parties was presented, it must be stated that,
judging from the carefully written decision
under review, it was only after a thorough study
of the record that His Honor arrived at the
conclusion that the subscribing witnesses do
not appear to be wholly disinterested persons.
On the matter of the number of copies made of
the questioned will allegedly signed by the
testator and the three subscribing witnesses,
His Honor found that Cabiluna was very
uncertain and confused; that a certain stage of
his examination, he said that only two copies of
the will were prepared — the original and one
carbon copy — while at another stage he
affirmed that he did not know whether or not
there was a duplicate and that all he could say
was that he had affixed his
signature three times (Transcript, Marquiala,
August 22, 1958, pp. 49-50). In truth, however,
he really signed six (6) times — twice on the
original and twice on each of the two copies.
Adding confusion to the situation is the answer
he gave when he was asked if Vito Borromeo
also signed the carbon copy, to which his
answer was "I did not see" (Idem., p. 50).
On the other hand, the other subscribing
witness, Atty. Filiberto Leonardo, testified
categorically that there were only the original
and one carbon copy of the will and that the
testator and all the subscribing witnesses
signed both (Transcript, Marquiala, December
23, 1953, pp. 167, 210, and 218). However, the
naked and highly disturbing fact is that,
contrary to what is inferable from the vacillating
testimony of Cabiluna and the categorical
assertion of Atty. Leonardo, the proponents of
the questioned will themselves
presented three copies of said will; the original,
a carbon duplicate copy and a carbon triplicate
copy, now in the record as Exhibits A, E and K,
respectively.
While it is true that the testimony of these
subscribing witnesses was given around eight
years after the alleged execution of the
questioned will, still we believe that the
transaction in which they claim to have taken
an important part is of such character and
importance that it can not be a very easy
matter for anyone of them to have a hazy
recollection of the number of copies signed by
the testator and by them. Stranger still would it
be for them to say something in open
contradiction with the reality on the matter. If,
as may be clearly deduced from their testimony
— Cabiluna and Leonardo's — there was only
the original and one copy signed by the
testator and the subscribing witnesses, why is
it that three — original and two copies — were
really in existence and were produced in court
during the trial?
In the case of the third subscribing witness, Dr.
Cornelio Gandionco, the imputation was made
by two witnesses, Dr. Teofilo Borromeo and
Judge Crispin Borromeo, that he was the
fiance of Angeles Borromeo, sister of Tomas
Borromeo, who is one of the three heirs
75
instituted in the questioned will, evidently to
show that he is not a completely disinterested
Page
witness. The evidence to this effect appears to
have remained unimpeached, although the
proponents of the will could have done it by
calling on Dr. Gandionco himself or on Angeles
Borromeo to deny the imputation.
Moreover, the evidence also disclose that Dr.
Gandionco was the uncle of the other
subscribing witness, Atty. Leonardo, and that,
in fact, they were living together at the time of
the alleged execution of the will. This
circumstance — apparently trivial — can not be
taken lightly because in view of appellee's
claim that Angeles Borromeo was the fiance of
Dr. Gandionco, it would not be unreasonable to
entertain the suspicion that both subscribing
witnesses were not wholly disinterested.
Material to this point is the fact established by
the evidence that Atty. Leonardo was the
notary public before whom the document
Exhibit 4-A — which purports to convey to a
partnership controlled by the heirs instituted in
the questioned will thirteen parcels of land
situated in the commercial center of Cebu City
— was supposedly acknowledged by the
testator on the same date May 17, 1945.
In the light of the foregoing, We can not see
our way clear to holding that the trial court
erred in refusing to give full credit to the
testimony of the three subscribing witnesses.
It has also been held that the condition and
physical appearance of a questioned document
constitute a valuable factor which, if correctly
evaluated in the light of surrounding
circumstances, may help in determining
whether it is genuine or forged. Subscribing
witnesses may forget or exaggerate what they
really know, saw, heard or did; they may be
biased and, therefore, tell only half truths to
mislead the court or favor one party to the
prejudice of the other. This can not be said of
the condition and physical appearance of the
questioned document itself. Both, albeit
silently, will reveal the naked truth, hiding
nothing, forgetting nothing, and exaggerating
nothing. For this reason, independently of the
conflicting opinions expressed by the
handwriting experts called to the witness stand
by the parties, we have carefully examined and
considered the physical appearance and
condition of the original and two copies of the
questioned will found in the record —
particularly the signatures attributed to the
testator — and We have come to the
conclusion that the latter could not have been
written by him.
Upon the face of the original and two copies of
the contested will (Exhibits A, E and K) appear
a total of six alleged signatures of the testator.
They are all well written along a practically
straight line, without any visible sign of tremor
or lack of firmness in the hand that wrote them.
In fact, in the respects just adverted to, they
appear better written than the unquestioned
signatures, of attesting witnesses Gandionco
and Cabiluna, inspite of the fact that on the
date of the alleged execution of the will (May
17, 1945) the testator was considerably older
and in a much poorer physical condition than
they. According to the evidence, the testator
was then a sick man, eighty-two years old, with
the entire left half of his body paralyzed since
six years before, while the oldest attesting
witness (Cabiluna) was around sixty-five years
of age and Leonardo and Gandionco were only
forty-four and forty-five years old respectively,
and were all in good health. Despite the
obviously very poor physical condition of the
testator, Leonardo claims that he signed the
alleged will unaided, writing his name thereon
slowly but continuously or without interruption,
and that, on the same occasion, he signed his
name several times not only on the original of
the will and its copies but also on the original
and several copies of the alleged confirmatory
sale Exhibit F-1 and on his residence
certificate. Considering all the attendant
circumstances, we agree with the lower court
that Vito Borromeo could not have written the
questioned signatures.
In view of what has been said heretofore, We
find it unnecessary to examine and consider in
detail the conflicting testimony of the
handwriting experts presented by the parties:
Martin Ramos by the proponents of the will, to
sustain the genuineness of the questioned
signatures, and Felipe Logan and Jose G.
Villanueva, by the oppositors, to prove that
said signatures are forgeries. We shall limit
ourselves in this connection to quoting with
approval the following portion of the appealed
decision:
What the Court finds to be a weakness
in the conclusions of Martin Ramos,
based on his comparative examination
of the questioned and standard
signatures of Vito Borromeo, is his
apparent assumption that all the
signatures were made by Vito Borromeo
under equality or similarity of
circumstances, that is, that in all
instances Vito Borromeo had normal
use of both of his hands, — the right
and the left. He failed to take into
account that when Vito Borromeo
76
allegedly affixed those signatures on
May 17, 1945 on Exhibits 'A', 'E', and 'K'
Page
 the left portion of his body, including the
left hand, was already paralyzed, and
Vito Borromeo was represented to have
written his name alone by himself and
unaided. Maybe, if he was previously
apprised of those circumstances, he
would hesitate to make the conclusion
that those flawless signatures reading
Vito Borromeo, written straight and in a
form as good as, if not better than, the
signatures of three much younger
attesting witnesses, were positively in
the handwriting of the 82-year old,
ailing, and paralytic Vito Borromeo. The
Court consequently, finds itself not
disposed to adopt his conclusions, but
on the contrary is inclined toward the
views of the other two experts
witnesses, Felipe Logan and Jose G.
Villanueva.
As stated at the outset, the contested will is
claimed to have been signed
and thumbmarked by the testator. An
examination of the thumbmarks, however,
readily shows that, as the lower court found,
the same are "glaringly far from being distinct
and clear"; that "they are not a possible means
of identification" nor can "they possibly be
identified to be those of Vito Borromeo, or for
that matter, of any other person whatsoever". It
is, therefore, obvious, that they are of little use
in the resolution of the issue before Us.
We believe, and so hold, that the resolution of
the lower court on this matter is correct
because said court, acting in its capacity as a
probate court, had no jurisdiction to determine
with finality the question of ownership involved.
That such matter must be litigated in a
separate action has been the established
jurisprudence in this jurisdiction (Ongsinco vs.
Borja, L-7635, July 25, 1955; Mallari vs.
Mallari, L-4656, February 23, 1953; Garcia vs.
Martin, G.R. No. L-9233, June 29, 1957;
Cordova vs. Ocampo, 73 Phil. 661; Pascual vs.
Pascual, 73 Phil. 561 and others), except
where a party merely prays for the inclusion or
exclusion from the inventory of any particular
property, in which case the probate court may
pass upon provisionally, the question of
inclusion or exclusion, but without prejudice to
its final determination in an appropriate
separate action (Garcia vs. Garcia, 67 Phil.
353; Marcelino vs. Antonio, 70 Phil. 388;
Guinguing vs. Abuton, 48 Phil. 144, 147).
In view of all the foregoing, the decision
appealed from is affirmed, with costs.

We shall now consider the appeal, taken by the

oppositors and the Republic of the Philippines
from that portion of the decision where the
lower court declined to decide with finality the
question of who owns the thirteen parcels of
land subject-matter of the confirmatory sale
Exhibit F-1 and whether or not they should be
included in or excluded from the inventory of
properties of the Estate of the deceased Vito
Borromeo.

It appears that on February 11, 1954 Tomas,

Amelia, and Fortunato Borromeo, through
counsel, filed a motion for the exclusion from
the inventory of the Estate of the thirteen lots
therein mentioned, with a total area of 2,348
square meters, claiming that the same had
been sold by the deceased Vito Borromeo
during his lifetime to the Cebu Arcade, T. L.
Borromeo y Cia. This motion for exclusion was
denied by the lower court in its order of July 16,
1954, and the ruling was reiterated in the
appealed decision "for the same reasons and
considerations" upon which it rejected the
probate of the will. The ruling on the matter,
77

however, was expressly made provisional in

nature.
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83

SAMSON VS CORRALES TAN QUINTIN
CUYUGAN VS BARON & BARON
G.R. Nos. L-3272-73 November 29,
1951
MANUEL GONZALES, petitioner-appellant,
vs.
MANOLITA GONZALES DE
CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN
GONZALES, oppositors-appellants.
PARAS, C.J.:
On November 27, 1948, Manuel Ibarra Vda. de
Gonzales (hereafter to be referred to as
testatrix) died at the age of about seventy-eight
years, leaving five children, namely, Alejandro
Gonzales, Leopoldo Gonzales, Manolita
Gonzales de Carungcong, and Juan Gonzales.
The estate left by her is estimated at P150,000.
On December 22, 1948, Manuel
Gonzales filed in the Court of First Instance of
Rizal a petition (Special Proceeding No. 837)
for the probate of an alleged will executed by
the testatrix on November 16, 1942 (Exhibit
B—Manuel Gonzales), devising to Manuel
Gonzales the greater portion of the estate,
without impairing the legitimes of the other
children.
On December 31, 1948, Manolita G. de
Carungcong filed in the same court a petition
(Special Proceeding No. 838) for the probate of
another alleged will executed by the testatrix
on May 5, 1945 (Exhibit 1—Manolita G.
Carungcong), leaving to Manolita G. de
Carungcong the greater bulk of the estate,
without impairing the legitimes of the other
children.
In his opposition filed on February 16,
1949, Alejandro Gonzales, Jr. sought the
disallowance of the wills executed on
November 16, 1942, and May 5, 1945, on the
ground that, assuming their validity, they had
been revoked by the testatrix in an instrument
executed by her on November 18, 1948
(Exhibit 2—Alejandro and Juan Gonzales), with
the result that her estate should be distributed
as if she died intestate.
With the exception of Leopoldo
Gonzales, the children of the testatrix filed
mutual oppositions to one or the other
instruments tending to negative their respective
positions.
After a joint hearing, the Court of First
Instance of Rizal rendered a decision with the
following dispositive pronouncements:
All facts considered in the light of the
evidence presented and in the manner
in which the witnesses testified the court
concludes and holds:
First: That Exhibit B — Manuel
Gonzales, though validly executed on
November 16, 1942, was revoked by
Exhibit 1—Manolita G. Carungcong in
accordance with the provisions of
section 623 of the Code of Civil
Procedure.
Second: That Exhibit 2 —
Alejandro and Juan Gonzales being
executed without the knowledge and
testamentary capacity of the testatrix
and being contrary to the provisions of
section 618 of the Code of Civil
Procedure, the said document is hereby
declared null and void.
Third: That Exhibit 1 — Manolita
G. Carungcong having been executed in
accordance with law the same is hereby
declared as the true and last will and
testament of the deceased Manuela
Ibarra Viuda de Gonzales, and said will
is hereby admitted probate.
From this judgment petitioner Manuel
Gonzales and oppositors Alejandro Gonzales,
Jr. and Juan Gonzales have appealed. The
appeal as to Juan Gonzales was dismissed in
view of his failure to pay the proportionate
share of the printing cost of the record on
appeal.
In the parts material to the present
appeal, the will executed by the testatrix on
May 5, 1945, is of the following form and tenor:
IKALABING-DALAWA. Na ang aking
HULING BILIN AT TESTAMENTONG
ito ay binubuo ng PITONG (7) dahon o
pagina na may bilang na sunud-sunod
at ang bawa't dahon o pagina ay
mayroong tunay kong lagda o firma,
gayon din ang lahat ng aking saksi o
testigos.
SA KATUNAYAN ng lahat ng
isinasaysay ko dito ay aking nilagdaan
ito dito sa Imus, Kavite, Filipinas
ngayong ika-5 ng Mayo ng taong 1945,
na nakaharap dito sa ating paglagda o
pagfirma ang tatlong saksi o testigos. At
aking ding nilagdaan o pinirmahan ang
tagilirang kaliwa ng lahat at bawa't
dahon o pagina nitong testamento kong
ito sa harap ng lahat at bawa't isang
saksi o testigos at ang lahat at bawa't
84
isa naman sa kanila ay nangagsilagda o
nagsifirma din dito bilang saksi ko sa
Page
 harap ko at sa harap ng lahat at bawa't The attestation clause in question
isa sa kanila, at ganoon din silang mga bears also similarity with the attestation
saksi ko ay nangag-lagda o nagsi-firma clause in the will involved in Aldaba vs.
sa tagilirang kaliwa ng lahat at bawa't Roque, (43 Phil., 378). In that case, the
isa sa mga dahon o pagina nitong aking attestation clause formed part of the
testamento. body of the will and its recital was made
(Sgd.) MANUELA Y. VDA. DE GONZALES by the testatrix herself and was signed
MANUELA IBARRA VDA. DE GONZALES by her and by the three instrumental
witnesses. In upholding the validity of
the will, the court said:
Mga Saksi o Testigos: In reality, it appears that it is the
(Sgd.) BIENVENIDO DE LOS REYES testatrix who makes the declaration
(Sgd.) TAHIMIK T. SAYOC about the points in the last paragraph of
(Sgd.) LUIS GAERLAN the will; however, as the witnesses,
together with the testatrix, have signed
the said declaration, we are of the
It is contended for the appellants that
opinion and so hold that the words
this will does not contain any attestation
above quoted of the testament
clause; that, assuming the concluding
constitute a sufficient compliance with
paragraph to be the attestation clause, it is not
the requirements of Act No. 2465.
valid because it is the act of the testatrix and
not of the witnesses, and because it does not
Of course three of the Justices of this
state the number of sheets or pages of the will.
Court concurred in the result, "in the possibility
In the very recent case of Valentina
that the testator in the present case, or the
Cuevas vs. Pilar Achacoso, G.R. No. L-3497,
person or persons who prepared the will had
decided May, 1951 * we sustained, finding a
relied upon the ruling laid down in the case
precedent in Aldaba vs. Roque, 43 Phil., 378,
ofAldaba vs. Roque, supra, and that it would
an attestation clause made by the testator and
now be unfair to reject the present will when in
forming part of the body of the will. Through
its preparation a ruling of this Court has been
Mr. Justice Bautista, we held:
followed." But the case at bar still falls within
The clause above quoted is the
this view, the will (Exhibit 1—Manolita G.
attestation clause referred to in the law
Carongcong) having been executed on May 5,
which, in our opinion, substantially
1945.
complies with its requirements. The only
The attestation clause contained in the
apparent anomaly we find is that it
body of the will being thus valid, the statement
appears to be an attestation made by
in the penultimate paragraph of the will
the testator himself more than by the
hereinabove quoted as to the number of sheets
instrumental witnesses. This apparent
or pages used, is sufficient attestation which
anomaly, however, is not in our opinion
may be considered in conjunction with the last
serious nor substantial as to affect the
paragraph. It is significant that the law does not
validity of the will, it appearing that right
require the attestation to be contained in a
under the signature of the testator, there
single clause. While perfection in the drafting of
appear the signatures of the three
a will may be desirable, unsubstantial
instrumental witnesses.
departure from the usual forms should be
Instrumental witnesses, as
ignored, especially when the authenticity of the
defined by Escriche in his Diccionario
will is not assailed, as in this case.
Razobada de Legislacion, y
The result reached in respect of the
Jurisprudencia, Vol. 4, p. 1115, is on
sufficiency of the will (Exhibit 1—Manolita G.
who takes part in the execution of an
Carongcong) necessarily disposes of the
instrument or writing" (in re will of Tan
contention of the appellant Manuel Gonzales
Diuco, 45 Phil., 807, 809). An
that the trial court erred in not admitting to
instrumental witness, therefore, does
probate the will (Exhibit B—Manuel Gonzales),
not merely attest to the signature of the
since the latter will must be considered
testator but also to the proper execution
revoked by the subsequent will (Exhibit 1—
of the will. The fact that the three
Manolita G. Carongcong).
instrumental witnesses have signed the
What remains to be discussed is the
will immediately under the signature of
claim of appellant Alejandro Gonzales, Jr. that
the testator, shows that they have in fact
the will (Exhibit 1—Manolita G. Carongcong)
attested not only to the genuineness of
has been revoked by the testatrix in the
his signature but also to the due
85

instrument of November 18, 1948 (Exhibit 2—

execution of the will as embodied in the
Page

attestation clause.
Alejandro and Juan Gonzales) which provides
as follows:
Ako, MANUEL YBARRA VDA. DE
GONZALES, may sapat na gulang at
naninirahan sa ciudad ng Rizal, may
mahusay at wastong pag-iisip at
mabuting pagtatanda, sa pamamagitan
ng kasulatang ito at bilang huling
kapasiyahan ay sinasaysay ko ito at
ipinahahayag sa ngayon sa alin mang
testamento o huling habilin na
napirmahan kong una sa kasulatang ito
ay pinawawalan ko ng saysay at
kabuluhang lahat pagkat hindi iyong
tunay kong kalooban ngayon.
Sa katunayan ng lahat ng ito at
sa pagkat hindi ako makalagda ngayon
ang pina-kiusapan si Constancio Padilla
na ilagda ako sa kasulatang ito ngayon
ika-17 ng Noviembre ng taong ito 1948,
dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong,
like Manuel Gonzales (as appellee), contends
that the testatrix lacked the testamentary
capacity when she allegedly executed the
instrument of revocation, and their contention
was sustained by the trial court. We have
examined the record and found no valid reason
for reversing the finding of said court which had
the benefit of observing and hearing the
witnesses testify. Upon the other hand, the
following considerations amply support the
appealed decision:.
1. For more than ten years prior to her
death, the testatrix had suffered from
hypertension. On November 14, 1948, she had
aphasia and on November 15, 1948, she was
taken to the hospital upon advice of the family
physician, Dr. Jose C. Leveriza. In the letter
introducing her to the hospital authorities
(Exhibit E—Manuel Gonzales), Dr. Leveriza
stated that the testatrix was suffering from
hypertension and cerebral thrombosis.
Particularly on November 18, 1948, when the
alleged instrument of revocation was executed
by her, the testatrix was in a comatose and
unconscious state and could not talk or
understand. The following is the testimony of
Dr. Leveriza portraying the physical condition
of the testatrix up to November 18, 1948:
P. Y que hizo usted cuando Doña
Manuela I. Vda. de Gonzales ya estaba
en el hospital?—R. Me fui alla para
examinarla.
P. Cual era el resultado de su
examen?—R. Cuando fue al hospital a
examinarla en el primer dia via que la
aphasia se agravo, o sea que ha
perdido el poder de hablar
inteligentemente; tambien encontre que
estaba inconsciente, durmiendo
constantemente y no se le podia,
despertar, tenia la respiracion fatigosa,
lenta y con estertores, y no podia
levantarse, asi que yo perscribi que
diera el alimento por medio de
hypodermoclysis, o sea por medio de
inyecciones.
Sr. PAMINTUAN.—Quisieramos saber,
Su Señoria, si se presenta al testigo
como experto?
Sr. SERRANO.—Tambien quisiera
saber si se presenta como madico de la
familia o como medico experto?.
Sr. ARCEGA.—Presento al testigo
como medico de cabecere y como
medico experto al mismo tiempo.
P. Y que hicieron en el hospital en
vista de sus instrucciones?—R.
Cumplieron la prescripcion mia.
P. Que sucedio con respecto al
estado de la paciente?—R. La paciente
a medida que pasaban los dias se
quedaba grave cada vez y mas graves
los sintomas aun que al primer dia en
que fue ella llevada al hospital.
P. Volviendome a la condicion de la
paciente, en que estado se encontraba
Doña Manuela I. Vda. de gonzales el 14
de noviembre de 1948 antes de
ingresarla en el hospital?—R. La
encontre con aphasia, no podia hablar
inteligentemente.
"P. Puede usted explicar al Juzgado
el curso de la enfermedad de Doña
Manuela I. Vda. de Gonzales?—R.
Estuvo agravandose desde el segundo
dia en que fue ingresada al hospital, y
desde ese dia orinaba y deponia en la
cama inconscientemente.
xxx xxx xxx
(t.s.n., Laquindanum, March 21, 1949,
pp. 24-26.)
P. Explique usted al Juzgado el
curso de la enfermedad de la paciente
haciendo referencia de las fechas que
aparecen en los Exhibitos 3 y 3-4?—R.
El noviembre 14, ordene el ingreso de la
paciente al Mercy Hospital, porque tuvo
paralisis parcial en la lengua,
probablemente de origen embalismo o
thrombosis cerebral, y como ya era de
noche no se llevo al hospital, sino el dia
15 de noviembre en donde le he hecho
dos visitas; la condicion de la paciente
continuo empeorando hasta el dia 25 de
noviembre en que sobrevino la
complicacion de pneumonia hypostatica
hasta que fallecio el noviembre 27,
86
1948, a las 2:30 p.m.
xxx xxx xxx
Page
(t.s.n., Laquindanum, March 21, 1948,
pp. 28-29.)
JUZGADO.—P. Como llego usted a esa
conclusion de que desde el 14 de
noviembre de 1948 en que usted
ordeno la entrega de la paciente al
hospital empeoro su salud hasta que
murio el dia 27 de noviembre de 1948?-
R. Porque cada vez mas se acentua su
estado comatoso, y demas su
respiracion se hacia mas fatigosa cada
vez que pasaban los dias, y con
estertores.
P. Y como estaba su estado
mental?—R. Estaba completamente
inconsciente desde el dia en que entro
en el hospital.
Sr. ARCEGA. — P. Podia hablar la
paciente en la fecha en que fue
ingresada al hospital?-R. No, señor.
P. Despues del 15 de noviembre de
1948 en que segun usted fue ingresada
la paciente en el hospital podia hablar
ella y hacer entender sus palabras?—R.
No, señor.
P. Y que hacia la paciente?—R.
Estaba durmiendo continuamente, no
podia abrir sus ojos por si sola, sino que
yo abria para ver la pupila.
P. Trato usted de tener
conversacion con la paciente?—R.
Naturalmente trataba, pero contestaba,
y ni creo que me entendia.
P. Podia levantarse la paciente?—
R. No, señor, porque estaba en estado
comtosos, y para prevenir la pneumonia
hypostatica dos o tres hombres tenian
que levantaria y ponerla algo de
costado o algo asi reclinada.
P. Y que resultado tuvo esa
precaucion que usted tomo?—R. Se ha
retrasado o retardado le pneumonia,
pero sobrevino, al fin, que siempre es
fatal.
P. Usted dijo que al fin sobrevino la
pneumonia, que efecto tuvo esa
pneumonia a la paciente?—R. Precipito
la muerte de la paciente.
P. El 18 de noviembre de 1948,
segun testimonio de los testigos,
otorgaron el documento Exhibit 2-
Alejandro y Juan Gonzales, puede
usted decir al Juzgado en que estado se
encontraba Doña Manuela I. Vda. de
Gonzales?—R. Estaba en estado
comatoso.
P. Por que sabe usted eso?—R.
Porque en esa fecha yo la visite dos
veces: una por la mañana y otra por la
tarde.
P. Y estando en el estado
comatoso, como usted, dice, puede
usted decir al Juzgado si podia ella
hablar o entender sus palabras o su
deseo?—R. No, señor.
P. Hizo usted esfuerzos para
hacerie comprender sus palabras?—R.
Siempre examinaba a ella para ver si
reaccionaba favorablemente la
paciente, pero cada vez era peor.
P. Puede usted decir si en aquella
fecha la paciente podia siquiera hacer
movimiento de cabeza?—R. No, señor,
porque la parte derecha del cuerpo
tenia hemiflejia o paralisis.
P. Cual es la causa de oso que
usted dice hemiflejia o paralisis?—R.
Generalmente se debe a una
hemorragia cerebral o trombosis del
cerebro.
P. Teniendo hemorragia cerebral o
trombosis del cerebro, segun usted,
cual es la parte del cuerpo humano que
queda afectada?—R. La cabeza y
tambien los brazos, como los miembros
del cuerpo.
P. Que quiere usted decir como los
miembros del cuerpo?—R. Las manos y
los pies.
P. Podia mover la paciente sus
manos y su cuerpo?—R. La parte
izquierda si.
P. Y la parte derecha?-R. No, señor.
JUZGADO.—Pero una persona en ese
estado de salud, como estaba la
paciente Doña Manuela I. Vda. de
Gonzales, el 18 de noviembre de 1948,
podia comprender palabras dichas a
ella o indicaciones hechas por alguna
persona a ella?—R. No, señor.(t.s.n.
Laquindanum, March 21, 1948, pp. 30-
33.).
While appellant Alejandro Gonzales, Jr.
has attempted to show that Dr. Leveriza was
not an expert, the latters's testimony remains
uncontradicted. The fact that the testimony of
the attesting witnesses tends to imply that the
testatrix was of sound mind at the time the
alleged instrument of revocation was executed,
cannot prevail over the findings of the
attending physician, Dr. Leveriza, because
even Dr. Ramon C. Talavera (an attesting
witness) testified that although he had not
examined the testatrix, her case appeared
serious; that he had a hunch that "they were
taking advantage of the last moment of the
deceased and they were trying to make me an
instrument in the accomplishment of their
87
aims," and that he had the idea that the
Page
testatrix was in doubtful condition because he
"could only judge from the people going there.".
It is also argued that if the testatrix was
in a comatose condition, Dr. Leveriza would
not have ordered to "let her sit on bed or on
chair and let her turn on her side sometime."
However, Dr. Leveriza has given the reason for
this prescription, namely, to avoid hypostatic
pneumonia.
In support of the contention that the
testimony of the attesting witnesses should be
given more credence than the opinion of an
expert witness, reliance is placed on the case
of Caguioa vs. Calderon, 20 Phil., 400;
Bagtas vs. Paguio, 22 Phil., 227; Galvez vs.
Galvez, 26 Phil., 243; Samson vs. Corrales
Tan Quintin, 44 Phil., 573; Amata vs. Tablizo,
48 Phil., 485, and Neyra vs. Neyra, 42, Off.
Gaz., 2790 ** These cases are notably
distinguishable from the case at bar. The
former refer to situations in which the doctors
were not in a position to certify definitely as the
testamentary capacity of the testators at the
time the wills therein involved were executed,
because they had not observed the testators
on said dates or never saw them; whereas the
case now before us involves a family physician
who attended the testatrix during her last
illness and saw her on the day when the
alleged instrument of revocation was executed.
2. We cannot help expressing our
surprise at the fact that the instrument of
revocation was allegedly executed on
November 18, 1948, when, according to the
testimony of Jose Padilla, the latter was asked
by the testatrix to prepare the necessary
document as early as in the month of May,
1948, and reminded about it for the second
time weeks before November 1, 1948, and for
the third time several days before the latter
date (November 1, 1948). The first excuse
given by Jose Padilla for the delay is that he
was busy and the children of the testatrix had
certain disputes which he tried to settle. The
second excuse is that he was not able to
secure soon enough from Alejandro Gonzales,
Jr. some documents of transfer which he
wanted to examine in connection with the
preparation of the desired instrument of
revocation. We are inclined to state that these
excuses are rather poor. If Jose Padilla was
too busy to give attention to the matter, he
could have very easily informed the testatrix
and the latter, if really desirous of revoking her
former wills, would have employed another to
prepare the requisite document. The fact that
there were disputes between the children of
the testatrix certainly was not an obstacle to
the accomplishment of the wish of the testatrix.
Neither was it necessary to examine the
documents relating to the properties of the
testatrix, since the instrument of revocation
could be prepared without any reference to the
details of her estate. Indeed, the instrument
(Exhibit 2—Alejandro and Juan Gonzales) is
couched in general terms.
3. Even under the theory of the
appellant Alejandro Gonzales, Jr. it is hard to
rule that the testatrix had sufficient
testamentary capacity at the time of the
execution of the alleged instrument of
revocation. In the first place, Constancio
Padilla (brother of Jose Padilla) merely asked
the testatrix, first, if she was agreeable to the
instrument of revocation prepared by Jose
Padilla, and secondly, if she was agreeable to
the signing of said document by Constancio
Padilla, to which two questions the testatrix
allegedly answered "Yes". It is not pretended
that the testatrix said more about the matter or
gave any further instruction. The attesting
witnesses were not introduced to the testatrix,
and their presence was not even mentioned to
her. it is obviously doubtful whether the
testatrix understood the meaning and extent of
the ceremony. Assuming that the testatrix
answered in the affirmative the two questions
of Constancio Padilla, without more, we cannot
fairly attribute to her manifestation of her desire
to proceed, right then and there, with the
signing of the questioned instrument. In other
words, contrary to the recital of the attestation
clause, the testatrix cannot rightly be said to
have published her last will to the attesting
witnesses.
The appealed decision is, therefore,
affirmed without costs.
So ordered.
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