G.R. No. L-14003 August 5, 1960 Fortunata Vda.
Fortunata Vda. de Yance, he answered positively in the witness may have been present at the execution of a holographic will,
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15
January 1958 by the Court of First Instance of Quezon City in its
Special Proceedings No. Q-2640, involves the determination of the
quantity of evidence required for the probate of a holographic will.
The established facts are thus summarized in the decision appealed
from (Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by
the petitioner; that on September 9, 1957, Fortunata S.
Vda. de Yance died at 13 Luskot, Quezon City, known to
be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will,
submitted the said holographic will (Exh. C) whereby Maria
Milagros Azaola was made the sole heir as against the
nephew of deceased Cesario Singson; that witness
Francisco Azaola testified that he saw the holographic will
(Exh. C) one month, more or less, before the death of the
testatrix, as the same was handed to him and his wife; that
the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general power of
attorney (Exh. F-1), besides the deeds of sale (Exhs. G
and G-1) including an affidavit (Exh. G-2), and that there
were further exhibited in court two residence certificates
(Exhs. H and H-1) to show the signatures of the testatrix,
for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix
as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix
as well as the signatures appearing therein are the
signatures of the testatrix; that said witness, in answer to a
question of his counsel admitted that the holographic will
was handed to him by the testatrix. "apparently it must
have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when
the same witness was asked by counsel if he was familiar
with the penmanship and handwriting of the deceased
affirmative and when he was asked again whether the
penmanship referred to in the previous answer as
appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers";
that it was also established in the proceedings that the
assessed value of the property of the deceased in Luskot,
Quezon City, is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the
execution of the will was procured by undue and improper pressure
and influence on the part of the petitioner and his wife, and (2) that
the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of
August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the
Civil Code, the proponent must present three witnesses who could
declare that the will and the signature are in the writing of the testatrix,
the probate being contested; and because the lone witness
presented by the proponent "did not prove sufficiently that the body
of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to
produce more than one witness because the will's authenticity was
not questioned; and second, that Article 811 does not mandatorily
require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be
denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following
effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such
witnesses shall be required.
In the absence of any competent witnesses referred to in
the preceding paragraph, and if the court deems it
necessary, expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one
witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no
none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite
qualifications is a matter beyond the control of the proponent. For it
is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and
signature of the testator" and who can declare (truthfully, of course,
even if the law does not so express) "that the will and the signature
are in the handwriting of the testator". There may be no available
witness of the testator's hand; or even if so familiarized, the witnesses
may be unwilling to give a positive opinion. Compliance with the rule
of paragraph 1 of Article 811 may thus become an impossibility. That
is evidently the reason why the second paragraph of Article 811
prescribes that —
in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified
witness may be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of the
will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of
ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness
need be present (Art. 10), and the rule requiring production of three
witnesses must be deemed merely permissive if absurd results are
to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveal that what
the law deems essential is that the Court should be convinced of the
will's authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is
genuine, it may consider it unnecessary to call for expert evidence.
On the other hand, if no competent witness is available, or none of
those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to
exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be
carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish
Civil Code of 1889, the noted Commentator, Mucuis Scaevola (Vol.
12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre
acerca de la autenticidad del testamento olografo, aunque
ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez
debe de proceder en resoluciones de transcendencia asi
lo exige, y la indole delicada y peligrosa del testamento
olografo lo hace necesario para mayor garantia de todos
los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y
un modo de desvanecer las ultimas dudas que pudieran
ocurrir al Juez acerca de la autenticidad que trata de
averigaur y declarar. Para eso se ha escrito la frase del
citado ultimo apartado, (siempre que el Juez lo estime
conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of
the Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this
Court has been called upon to construe the import of said article, the
interest of justice would be better served, in our opinion, by giving the
parties ample opportunity to adduce additional evidence, including
expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and
the records ordered remanded to the Court of origin, with instructions
to hold a new trial in conformity with this opinion. But evidence
already on record shall not be retaken. No costs.
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the
authenticity of testators holographic will has been
established and the handwriting and signature therein
(exhibit S) are hers, enough to probate said will. Reversal
of the judgment appealed from and the probate of the
holographic will in question be called for. The rule is that
after plaintiff has completed presentation of his evidence
and the defendant files a motion for judgment on demurrer
to evidence on the ground that upon the facts and the law
plaintiff has shown no right to relief, if the motion is granted
and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf
(Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and
judgment rendered allowing the probate of the holographic
will of the testator Matilde Seño Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seño Vda. de Ramonal, filed with the Regional
Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the
holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seño
Vda. de Ramonal, was of sound and disposing mind when she
executed the will on August 30, 1978, that there was no fraud, undue
influence, and duress employed in the person of the testator, and will
was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition5 to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible.
This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal
executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing
on will after every disposition is out of the ordinary. If the deceased
was the one who executed the will, and was not forced, the dates and
the signature should appear at the bottom after the dispositions, as
regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured
by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.1âwphi1.nêt
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic
will of the deceased Matilde Seño Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the
Demurrer to Evidence having being well taken, same is
granted, and the petition for probate of the document
(Exhibit "S") on the purported Holographic Will of the late
Matilde Seño Vda. de Ramonal, is denied for insufficiency
of evidence and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal,8 and in
support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad;
(5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses,
we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the
purpose of laying the basis for comparison of the handwriting of the
testatrix, with the writing treated or admitted as genuine by the party
against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was
presented to produced and identify the voter's affidavit of the
decedent. However, the voters' affidavit was not produced for the
same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seño
Vda. de Ramonal was her aunt, and that after the death of Matilde's
husband, the latter lived with her in her parent's house for eleven (11)
years from 1958 to 1969. During those eleven (11) years of close
association the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde
Seño Vda. de Ramonal) in collecting rentals from her various tenants
of commercial buildings, and deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased
in posting the records of the accounts, and carried personal letters of
the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death
of Matilde Vda. de Ramonal, she left a holographic will dated August
30, 1978, which was personally and entirely written, dated and
signed, by the deceased and that all the dispositions therein, the
dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City
Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled
all the pleadings and documents signed by the deceased in
connection with the proceedings of her late husband, as a result of
which he is familiar with the handwriting of the latter. He testified that
the signature appearing in the holographic will was similar to that of
the deceased, Matilde Seño Vda. de Ramonal, but he can not be
sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee
of the Department of Environment and Natural Resources, Region
10. She testified that she processed the application of the deceased
for pasture permit and was familiar with the signature of the
deceased, since the signed documents in her presence, when the
latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that
she had lived with the deceased since birth, and was in fact adopted
by the latter. That after a long period of time she became familiar with
the signature of the deceased. She testified that the signature
appearing in the holographic will is the true and genuine signature of
Matilde Seño Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in
English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline August 30, 1978
Calugay.
Gene and Manuel:
(Sgd) Matilde Vda de Ramonal
Follow my instruction in order that I will rest peacefully.
August 30, 1978
Mama
2. Josefina Salcedo must be given 1,500 square meters at
Pinikan Street.
Matilde Vda de Ramonal
(Sgd) Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling
that the appeal was meritorious. Citing the decision in the case
August 30, 1978 of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
3. My jewelry's shall be divided among:
. . . even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our
1. Eufemia Patigas
present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the
2. Josefina Salcedo handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present
at the execution of the holographic will, none being
3. Evangeline Calugay required by law (art. 810, new civil code), it becomes
obvious that the existence of witnesses possessing the
(Sgd) Matilde Vda de Ramonal requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
producing any three witnesses; they must be witnesses
August 30, 1978 "who know the handwriting and signature of the testator"
and who can declare (truthfully, of course, even if the law
4. I bequeath my one (1) hectare land at Mandumol, does not express) "that the will and the signature are in the
Indahag to Evangeline R. Calugay handwriting of the testator." There may be no available
witness acquainted with the testator's hand; or even if so
familiarized, the witness maybe unwilling to give a positive
(Sgd) Matilde Vda de Ramonal opinion. Compliance with the rule of paragraph 1 of article
811 may thus become an impossibility. That is evidently
August 30, 1978 the reason why the second paragraph of article 811
prescribes that —
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal
Village in favor of Evangeline R. Calugay, Helen must in the absence of any competent witness referred to in the
continue with the Sta. Cruz, once I am no longer around. preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
(Sgd) Matilde Vda de Ramonal
As can be see, the law foresees, the possibility that no
qualified witness ma be found (or what amounts to the
August 30, 1978 same thing, that no competent witness may be willing to
testify to the authenticity of the will), and provides for resort
6. Bury me where my husband Justo is ever buried. to expert evidence to supply the deficiency.
(Sgd) Matilde Vda de Ramonal It may be true that the rule of this article (requiring that
three witnesses be presented if the will is contested and
 only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs.
Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL
742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments,
precisely because the presence of at least three witnesses
at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no
witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely
permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is
conditioned by the words "if the court deem it necessary",
which reveal that what the law deems essential is that the
court should be convinced of the will's authenticity. Where
the prescribed number of witnesses is produced and the
court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested
as the proponent that the true intention of the testator be
carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness
of the holographic will were contested, Article 811 of the
civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the
probate denied. No witness need be present in the
execution of the holographic will. And the rule requiring the
production of three witnesses is merely permissive. What
the law deems essential is that the court is convinced of
the authenticity of the will. Its duty is to exhaust all available
lines of inquiry, for the state is as much interested in the
proponent that the true intention of the testator be carried
into effect. And because the law leaves it to the trial court
to decide if experts are still needed, no unfavorable
inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain
terms testified that the handwriting and signature in the holographic
will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the handwriting presented to declare explicitly that the signature appearing in the
and signature therein, and allowed the will to probate. holographic was that of the deceased.
Hence, this petition. Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the voter's
affidavit, which was not even produced as it was no longer available.
The petitioners raise the following issues:
Matilde Ramonal Binanay, on the other hand, testified that:
(1) Whether or not the ruling of the case of Azaola
vs. Singson, 109 Phil. 102, relied upon by the respondent
Court of Appeals, was applicable to the case. Q. And you said for eleven (11) years Matilde Vda de
Ramonal resided with your parents at Pinikitan, Cagayan
de Oro City. Would you tell the court what was your
(2) Whether or not the Court of Appeals erred in holding
occupation or how did Matilde Vda de Ramonal keep
that private respondents had been able to present credible
herself busy that time?
evidence to that the date, text, and signature on the
holographic will written entirely in the hand of the testatrix.
A. Collecting rentals.
(3) Whether or not the Court of Appeals erred in not
analyzing the signatures in the holographic will of Matilde Q. From where?
Seño Vda. de Ramonal.
A. From the land rentals and commercial buildings at
In this petition, the petitioners ask whether the provisions of Article Pabayo-Gomez streets.12
811 of the Civil Code are permissive or mandatory. The article
provides, as a requirement for the probate of a contested holographic
xxx xxx xxx
will, that at least three witnesses explicitly declare that the signature
in the will is the genuine signature of the testator.1âwphi1.nêt
Q. Who sometime accompany her?
We are convinced, based on the language used, that Article 811 of
the Civil Code is mandatory. The word "shall" connotes a mandatory A. I sometimes accompany her.
order. We have ruled that "shall" in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of discretion
Q. In collecting rentals does she issue receipts?
and that the presumption is that the word "shall," when used in a
statute is mandatory.11
A. Yes, sir.13
Laws are enacted to achieve a goal intended and to guide against an
evil or mischief that aims to prevent. In the case at bar, the goal to xxx xxx xxx
achieve is to give effect to the wishes of the deceased and the evil to
be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator. Q. Showing to you the receipt dated 23 October 1979, is
this the one you are referring to as one of the receipts
which she issued to them?
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish A. Yes, sir.
the true intent of the testator.
Q. Now there is that signature of Matilde vda. De
Ramonal, whose signature is that Mrs. Binanay?
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of court, A. Matilde vda. De Ramonal.
Court of First Instance, Misamis Oriental, he merely identified the
record of Special Proceedings No. 427 before said court. He was not
Q. Why do you say that is the signature of Matilde Vda. Q. You testified that at time of her death she left a will. I A. 1985.17
De Ramonal? am showing to you a document with its title "tugon" is this
the document you are referring to?
xxx xxx xxx
A. I am familiar with her signature.
A. Yes, sir.
Q. Now, Mrs. Binanay was there any particular reason
Q. Now, you tell the court Mrs. Binanay, whether you why your mother left that will to you and therefore you have
know Matilde vda de Ramonal kept records of the accounts Q. Showing to you this exhibit "S", there is that that in your possession?
of her tenants? handwritten "tugon", whose handwriting is this?
A. It was not given to me by my mother, I took that in the
A. Yes, sir. A. My Aunt. aparador when she died.

Q. Why do you say so? Q. Why do you say this is the handwriting of your aunt? Q. After taking that document you kept it with you?

A. Because we sometimes post a record of accounts in A. Because I am familiar with her signature.16 A. I presented it to the fiscal.
behalf of Matilde Vda. De Ramonal.
What Ms. Binanay saw were pre-prepared receipts and letters of the Q. For what purpose?
Q. How is this record of accounts made? How is this deceased, which she either mailed or gave to her tenants. She did
reflected? not declare that she saw the deceased sign a document or write a
A. Just to seek advice.
note.
A. In handwritten.14
Q. Advice of what?
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal belongings
xxx xxx xxx
of the deceased but was in the possession of Ms. Binanay. She A. About the will.18
testified that:
Q. In addition to collection of rentals, posting records of
In her testimony it was also evident that Ms. Binanay kept the fact
accounts of tenants and deed of sale which you said what
Q. Mrs. Binanay, when you were asked by counsel for the about the will from petitioners, the legally adopted children of the
else did you do to acquire familiarity of the signature of
petitioners if the late Matilde Seno vda de Ramonal left a deceased. Such actions put in issue her motive of keeping the will a
Matilde Vda De Ramonal?
will you said, yes? secret to petitioners and revealing it only after the death of Matilde
Seño Vda. de Ramonal.
A. Posting records.
A. Yes, sir.
In the testimony of Ms. Binanay, the following were established:
Q. Aside from that?
Q. Who was in possession of that will?
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not
A. Carrying letters. yet a sickly person is that correct?
A. I.

Q. Letters of whom? A. Yes, sir.

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

A. Matilde. Q. She was up and about and was still uprightly and she
A. It was in my mother's possession.
could walk agilely and she could go to her building to
collect rentals, is that correct?
Q. To whom?
Q. So, it was not in your possession?
A. Yes, sir.19
A. To her creditors.15
A. Sorry, yes.
xxx xxx xxx
xxx xxx xxx
Q. And when did you come into possession since as you
said this was originally in the possession of your mother?
Q. Now, let us go to the third signature of Matilde
Ramonal. Do you know that there are retracings in the
word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal
the letter L in Matilde is continued towards letter D.
Evangeline Calugay declared that the holographic will was written,
A. Yes, sir.
dated and signed in the handwriting of the testator. She testified that:
Q. And there is a retracing in the word Vda.?
20
A. Yes, sir.
xxx xxx xxx
Q. Now, that was 1979, remember one year after the
alleged holographic will. Now, you identified a document
marked as Exhibit R. This is dated January 8, 1978 which
is only about eight months from August 30, 1978. Do you
notice that the signature Matilde Vda de Ramonal is
beautifully written and legible?
A. Yes, sir the handwriting shows that she was very
exhausted.
Q. You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you
were not present and you just tried to explain yourself out
because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978,
the same year as the alleged holographic will. In exhibit I,
you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid
movement. . . . And in fact, the name Eufemia R. Patigas below item No. 1, will you tell this court whose signature is
here refers to one of the petitioners? this?
A. Yes, sir. A. Yes, sir, that is her signature.
Q. You will also notice Mrs. Binanay that it is not only with Q. Why do you say that is her signature?
the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the handwriting
A. I am familiar with her signature.23
themselves, here you will notice the hesitancy and tremors,
do you notice that?
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived
A. Yes, sir.21
with her since birth. She never declared that she saw the deceased
write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. You testified that you stayed with the house of the
Q. Do you know Matilde Vda de Ramonal?
spouses Matilde and Justo Ramonal for the period of 22
years. Could you tell the court the services if any which you
rendered to Matilde Ramonal? A. Yes, sir I know her because she is my godmother the
husband is my godfather. Actually I am related to the
husband by consanguinity.
A. During my stay I used to go with her to the church, to
market and then to her transactions.
Q. Can you tell the name of the husband?
Q. What else? What services that you rendered?
A. The late husband is Justo Ramonal.24
A. After my college days I assisted her in going to the
bank, paying taxes and to her lawyer. xxx xxx xxx
Q. What was your purpose of going to her lawyer? Q. Can you tell this court whether the spouses Justo
Ramonal and Matilde Ramonal have legitimate children?
A. I used to be her personal driver.
A. As far as I know they have no legitimate children.25
Q. In the course of your stay for 22 years did you acquire
familiarity of the handwriting of Matilde Vda de Ramonal? xxx xxx xxx
A. Yes, sir. Q. You said after becoming a lawyer you practice your
profession? Where?
Q. How come that you acquired familiarity?
A. Here in Cagayan de Oro City.
A. Because I lived with her since birth.22
Q. Do you have services rendered with the deceased
Matilde vda de Ramonal?
xxx xxx xxx
A. I assisted her in terminating the partition, of properties.
Q. Now, I am showing to you Exhibit S which is captioned
"tugon" dated Agosto 30, 1978 there is a signature here
Q. When you said assisted, you acted as her counsel?
Any sort of counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property,
which was under the court before.26
xxx xxx xxx
Q. Appearing in special proceeding no. 427 is the
amended inventory which is marked as exhibit N of the
estate of Justo Ramonal and there appears a signature
over the type written word Matilde vda de Ramonal, whose
signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda
de Ramonal.27
xxx xxx xxx
Q. Aside from attending as counsel in that Special
Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other
matters but if there are documents to show that I have
assisted then I can recall.28
xxx xxx xxx
Q. Now, I am showing to you exhibit S which is titled
"tugon", kindly go over this document, Fiscal Waga and tell
the court whether you are familiar with the handwriting
contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature
is this?
A. I think this signature here it seems to be the signature
of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of
Matilde Vda de Ramonal, can you tell the court whose
signature is this?
A. Well, that is similar to that signature appearing in the
project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda
de Ramonal, can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature
of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being
written.
Q. How about this signature in item no. 4, can you tell the
court whose signature is this?
A. The same is true with the signature in item no. 4. It
seems that they are similar.29
xxx xxx xxx
Q. Mr. Prosecutor, I heard you when you said that the
signature of Matilde Vda de Ramonal Appearing in exhibit
S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of
Matilde vda de Ramonal. You are merely supposing that it
seems to be her signature because it is similar to the
signature of the project of partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of three
witnesses in case of contested holographic will, citing the decision
in Azaola vs. Singson,31ruling that the requirement is merely directory
and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object
of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore,
the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But on the other hand, also one must
not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased
but with one of the respondents, who kept it even before the death of
the deceased. In the testimony of Ms. Binanay, she revealed that the
will was in her possession as early as 1985, or five years before the
death of the deceased.
There was no opportunity for an expert to compare the signature and
the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison
was during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic
will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature
in the holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written by
the testator. The signature of the testator in some of the disposition
is not readable. There were uneven strokes, retracing and erasures
on the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30, 1980,34 and
a letter dated June 16, 1978,35the strokes are different. In the letters,
there are continuous flows of the strokes, evidencing that there is no
hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that ruling holographic will was in the handwriting
by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions
to allow petitioners to adduce evidence in support of their opposition
to the probate of the holographic will of the deceased Matilde Seño
vda. de Ramonal.1âwphi1.nêt
No costs.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP
deceased. FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for
appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving properties
in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the
Manila court of first instance with a petition for the probate of a
holographic will allegedly executed by the deceased, substantially in
these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na
pag-iisip, ay nagsasalaysay na ang aking kayamanan sa
bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking
mga kamag-anakang sumusunod:
Vicente Esguerra, Sr. ............................................. Rosario Gan 5 Bahagi
Fausto E. Gan .........................................................in the presence of Felina Esguerra, who read it for the third time.
Rosario E. Gan .........................................................
Filomena Alto .......................................................... Hospital 1for Bahagi
Beatriz Alto ..............................................................contained
At ang aking lahat ng ibang kayamanan sa Maynila at iba
panglugar ay aking ipinamamana sa aking asawang si
Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na
nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking
asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted
that the deceased had not left any will, nor executed any testament
during her lifetime.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its
contents and due execution by the statements in open court of Felina
Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra
mentioned to her first cousin, Vicente Esguerra, her desire to make
a will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness,
provided the document was entirely in her handwriting, signed and
dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter
of Vicente), who was invited to read it. In the afternoon of that day,
Felicidad was visited by a distant relative, Primitivo Reyes, and she
allowed him to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and
Jimenez, a niece. To these she showed the will, again
2 Bahagi
2 Bahagi
When on November 19, 1951, Felicidad was confined at the U.S.T.
her last illness, she entrusted the said will, which was
in a purse, to Felina Esguerra. But a few hours later,
1 Bahagi
Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she
delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the
will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had
been suffering from heart disease for several years before her death;
that she had been treated by prominent physicians, Dr. Agerico
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and
wife journeyed to the United States wherein for several weeks she
was treated for the disease; that thereafter she felt well and after
visiting interesting places, the couple returned to this country in
August 1950. However, her ailment recurred, she suffered several
attacks, the most serious of which happened in the early morning of
the first Monday of November 1951 (Nov. 5). The whole household
was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower floors and of by the Yap spouses.
Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at
about 8:00 a.m., found the patient hardly breathing, lying in bed, her
head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed,
and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons
swore that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for several
reasons, the most important of which were these: (a) if according to
his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would
have allowed the former to see and read the will several times; (c) it
is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will,
when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal
the will from her husband she would carry it around, even to the
hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded
the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was
executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the
testimony of the oppositor and of his witnesses in a vigorous effort to
discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce
the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go
over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of
the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills
along with other forms. The Code of Civil Procedure (Act 190)
approved August 7, 1901, adopted only one form, thereby repealing
the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its
arts. 810-814. "A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of
the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities
provided for wills under Act 190, which for fifty years (from 1901 to
1950) required wills to be subscribed by the testator and three
credible witnesses in each and every page; such witnesses to attest
to the number of sheets used and to the fact that the testator signed
in their presence and that they signed in the presence of the testator
and of each other.
The object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to
guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid those who have no right to succeed the testator
would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp.
No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be
fulfilled when such will is submitted to the courts for allowance. For
that purpose the testimony of one of the subscribing witnesses would
be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the
three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its
opinion as to the genuineness and authenticity of the testament, and
the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth
and veracity are demanded, since as stated, they need no witnesses;
provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to
suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be
demonstrated to be — or not to be — in the hands of the testator
himself. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will
is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's
handwriting) and if the court deem it necessary, expert testimony may
be resorted to."
The witnesses so presented do not need to have seen the execution
of the holographic will. They may be mistaken in their opinion of the
handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses,
who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been
written by the hand of the deceased. (Sec. 50, Rule 123). And the
court, in view of such contradictory testimony may use its own visual
sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of
opposition, and of assessing the evidence are not available. And
then the only guaranty of authenticity3 — the testator's handwriting
— has disappeared.
Therefore, the question presents itself, may a holographic will be
probated upon the testimony of witnesses who have allegedly seen
it and who declare that it was in the handwriting of the testator? How
can the oppositor prove that such document was not in the testator's
handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or
proven to be, in the testator's hand. The oppositor will, therefore, be
caught between the upper millstone of his lack of knowledge of the
will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be honest and
truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no
pains to examine and compare. Or they may be perjurers boldly
testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a
document which they believed was in the handwriting of the
deceased. Of course, the competency of such perjured witnesses to
testify as to the handwriting could be tested by exhibiting to them
other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare
for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read
a document which he believed was in the deceased's handwriting.
And the court and the oppositor would practically be at the mercy of
such witness (or witnesses) not only as to the execution, but also as
to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and
probate) of a lost or destroyed will by secondary — evidence the
testimony of witnesses, in lieu of the original document. Yet such
Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-
New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to
the holographic will is that it may be lost or stolen4 — an implied
admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled
and presented to the judge, (Art. 689) who shall subscribe it and
require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be filed (Art. 693). All
these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse
and the legitimate ascendants and descendants be summoned so
that they may make "any statement they may desire to submit with
respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its
contents, the above article 692 could not have the idea of simply
permitting such relatives to state whether they know of the will, but
whether in the face of the document itself they think the testator wrote
it. Obviously, this they can't do unless the will itself is presented to
the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the
choice of either complying with the will if they think it authentic, or to
oppose it, if they think it spurious.5 Such purpose is frustrated when
the document is not presented for their examination. If it be argued
that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with
the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document
itself--in the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing
testamentary dispositions in the handwriting of the deceased, but
apparently mutilated, the signature and some words having been torn
from it. Even in the face of allegations and testimonial evidence
(which was controverted), ascribing the mutilation to the opponents
of the will. The aforesaid tribunal declared that, in accordance with
the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose
en el parrafo segundo del articulo 688 del Codigo civil, que
para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del
año, mes y dia en que se otorque, resulta evidente que
para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando
se otorgaron se Ilenaron todos esos requisitos, sino que
de la expresada redaccion el precepto legal, y por el
 tiempo en que el verbo se emplea, se desprende la
necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la
Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello,
forzoso es affirmar que el de autos carece de validez y
aficacia, por no estarfirmado por el testador, cualquiera
que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para
pedir indemnizacion por el perjuicio a la persona culpable,
si la hubiere, o su castigo en via criminal si procediere,
por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero
Juzgo, admittedly the basis of the Spanish Civil Code provisions on
the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo,
titulo V, ley 15--E depues que los herederos e sus fijos
ovieren esta manda, fasta ... annos muestrenla al obispo
de la tierra, o al juez fasta VI meses y el obispo o el juez
tomen otros tales tres escritos, que fuesen fechos por su
mano daquel que fizo la manda; e por aquellos escriptos,
si semjara la letra de la manda, sea confirmada la manda.
E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda
otra vez, y en esta manera vala la manda. (Art. 689,
Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property
of the deceased in accordance with his holographic will, unless they
are shown his handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Ripert,
Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,
page 555).
Taking all the above circumstances together, we reach the
conclusion that the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the allowance
of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather
the insufficiency, of the evidence presented by petitioner Fausto E. circumstances described in the appealed decision, we find it hard to
Gan. believe that the deceased should show her will precisely to relatives
who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a
At this point, before proceeding further, it might be convenient to
share, or threaten to reveal its execution to her husband Ildefonso
explain why, unlike holographic wills, ordinary wills may be proved by
Yap. And this leads to another point: if she wanted so much to
testimonial evidence when lost or destroyed. The difference lies in
conceal the will from her husband, why did she not entrust it to her
the nature of the wills. In the first, the only guarantee of authenticity
beneficiaries? Opportunity to do so was not lacking: for instance, her
is the handwriting itself; in the second, the testimony of the
husband's trip to Davao, a few days after the alleged execution of the
subscribing or instrumental witnesses (and of the notary, now). The
will.
loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate. In fine, even if oral testimony were admissible to establish and
probate a lost holographic will, we think the evidence submitted by
herein petitioner is so tainted with improbabilities and inconsistencies
In the case of ordinary wills, it is quite hard to convince three
that it fails to measure up to that "clear and distinct" proof required by
witnesses (four with the notary) deliberately to lie. And then their lies
Rule 77, sec. 6.11
could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator,
their intimacy with the testator, etc. And if they were intimates or Wherefore, the rejection of the alleged will must be sustained.
trusted friends of the testator they are not likely to end themselves to
any fraudulent scheme to distort his wishes. Last but not least, they
Judgment affirmed, with costs against petitioner.
can not receive anything on account of the will.
G.R. No. L-58509 December 7, 1982
Whereas in the case of holographic wills, if oral testimony were
admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
signature of the deceased, he may contrive to let three honest and RICARDO B. BONILLA deceased, MARCELA
credible witnesses see and read the forgery; and the latter, having no RODELAS, petitioner-appellant,
interest, could easily fall for it, and in court they would in all good faith vs.
affirm its genuineness and authenticity. The will having been lost — AMPARO ARANZA, ET AL., oppositors-appellees, ATTY.
the forger may have purposely destroyed it in an "accident" — the LORENZO SUMULONG, intervenor.
oppositors have no way to expose the trick and the error, because
the document itself is not at hand. And considering that the
holographic will may consist of two or three pages, and only one of Luciano A. Joson for petitioner-appellant.
them need be signed, the substitution of the unsigned pages, which
may be the most important ones, may go undetected. Cesar Paralejo for oppositor-appellee.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature — feasibility of forgery — would be added to
the several objections to this kind of wills listed by Castan, Sanchez
RELOVA, J.:
Roman and Valverde and other well-known Spanish Commentators
and teachers of Civil Law.10
This case was certified to this Tribunal by the Court of Appeals for
final determination pursuant to Section 3, Rule 50 of the Rules of
One more fundamental difference: in the case of a lost will, the three
Court.
subscribing witnesses would be testifying to a fact which they saw,
namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their As found by the Court of Appeals:
opinion of the handwriting which they allegedly saw, an opinion which
can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand. ... On January 11, 1977, appellant filed a petition
with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B.
Turning now to the evidence presented by the petitioner, we find Bonilla and the issuance of letters testamentary
ourselves sharing the trial judge's disbelief. In addition to the dubious in her favor. The petition, docketed as Sp. Proc.
No. 8432, was opposed by the appellees contrary to law and settled pronouncements and Pursuant to Article 811 of the Civil Code, probate of holographic wills
Amparo Aranza Bonilla, Wilferine Bonilla Treyes rulings of the Supreme Court, to which the is the allowance of the will by the court after its due execution has
Expedita Bonilla Frias and Ephraim Bonilla on appellant in turn filed an opposition. On July 23, been proved. The probate may be uncontested or not. If uncontested,
the following grounds: 1979, the court set aside its order of February at least one Identifying witness is required and, if no witness is
23, 1979 and dismissed the petition for the available, experts may be resorted to. If contested, at least three
probate of the will of Ricardo B. Bonilla. The Identifying witnesses are required. However, if the holographic will
(1) Appellant was estopped from claiming that
court said: has been lost or destroyed and no other copy is available, the will can
the deceased left a will by failing to produce the
not be probated because the best and only evidence is the
will within twenty days of the death of the testator
handwriting of the testator in said will. It is necessary that there be a
as required by Rule 75, section 2 of the Rules of ... It is our considered opinion that once the
comparison between sample handwritten statements of the testator
Court; original copy of the holographic will is lost, a
and the handwritten will. But, a photostatic copy or xerox copy of the
copy thereof cannot stand in lieu of the original.
holographic will may be allowed because comparison can be made
(2) The alleged copy of the alleged holographic with the standard writings of the testator. In the case of Gam vs. Yap,
will did not contain a disposition of property after In the case of Gam vs. Yap, 104 Phil. 509, 522, 104 PHIL. 509, the Court ruled that "the execution and the contents
death and was not intended to take effect after the Supreme Court held that 'in the matter of of a lost or destroyed holographic will may not be proved by the bare
death, and therefore it was not a will holographic wills the law, it is reasonable to testimony of witnesses who have seen and/or read such will. The will
suppose, regards the document itself as the itself must be presented; otherwise, it shall produce no effect. The
material proof of authenticity of said wills. law regards the document itself as material proof of authenticity." But,
(3) The alleged hollographic will itself,and not an
in Footnote 8 of said decision, it says that "Perhaps it may be proved
alleged copy thereof, must be produced, by a photographic or photostatic copy. Even a mimeographed or
otherwise it would produce no effect, as held in MOREOVER, this Court notes that the alleged carbon copy; or by other similar means, if any, whereby the
Gam v. Yap, 104 Phil. 509; and holographic will was executed on January 25,
authenticity of the handwriting of the deceased may be exhibited and
1962 while Ricardo B. Bonilla died on May 13, tested before the probate court," Evidently, the photostatic or xerox
1976. In view of the lapse of more than 14 years copy of the lost or destroyed holographic will may be admitted
(4 ) The deceased did not leave any will,
from the time of the execution of the will to the
holographic or otherwise, executed and attested because then the authenticity of the handwriting of the deceased can
death of the decedent, the fact that the original be determined by the probate court.
as required by law.
of the will could not be located shows to our mind
that the decedent had discarded before his
The appellees likewise moved for the death his allegedly missing Holographic Will. WHEREFORE, the order of the lower court dated October 3, 1979,
consolidation of the case with another case Sp. denying appellant's motion for reconsideration dated August 9, 1979,
Proc. No, 8275). Their motion was granted by of the Order dated July 23, 1979, dismissing her petition to approve
Appellant's motion for reconsideration was denied. Hence, an appeal the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
the court in an order dated April 4, 1977.
to the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On November 13, 1978, following the SO ORDERED.
consolidation of the cases, the appellees moved
On July 7, 1980, appellees moved to forward the case to this Court
again to dismiss the petition for the probate of G.R. No. L-40207 September 28, 1984
on the ground that the appeal does not involve question of fact and
the will. They argued that:
alleged that the trial court committed the following assigned errors:
ROSA K. KALAW, petitioner,
(1) The alleged holographic was not a last will vs.
I. THE LOWER COURT ERRED IN HOLDING
but merely an instruction as to the management HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
THAT A LOST HOLOGRAPHIC WILL MAY
and improvement of the schools and colleges of Batangas, Branch VI, Lipa City, and GREGORIO K.
NOT BE PROVED BY A COPY THEREOF;
founded by decedent Ricardo B. Bonilla; and KALAW, respondents.
II. THE LOWER COURT ERRED IN HOLDING
(2) Lost or destroyed holographic wills cannot be Leandro H. Fernandez for petitioner.
THAT THE DECEDENT HAS DISCARDED
proved by secondary evidence unlike ordinary
BEFORE HIS DEATH THE MISSING
wills.
HOLOGRAPHIC WILL;
Antonio Quintos and Jose M. Yacat for respondents.
Upon opposition of the appellant, the motion to
III. THE LOWER COURT ERRED IN
dismiss was denied by the court in its order of
DISMISSING APPELLANT'S WILL.
February 23, 1979.
MELENCIO-HERRERA, J.:
The only question here is whether a holographic will which was lost
The appellees then filed a motion for
or cannot be found can be proved by means of a photostatic copy.
reconsideration on the ground that the order was
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K.
Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed
on December 24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of
Lipa City, being of sound and disposing mind and memory, do hereby
declare thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church
of Lipa City. In accordance with the rights of said Church, and that
my executrix hereinafter named provide and erect at the expose of
my state a suitable monument to perpetuate my memory.
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister
of the testatrix as her sole heir. Hence, on November 10, 1971,
petitioner ROSA K. Kalaw opposed probate alleging, in substance,
that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of
the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation,
erasure or alteration in a holographic will the
testator must authenticate the same by his full
signature.
ROSA's position was that the holographic Will, as first written, should
be given effect and probated so that she could be the sole heir
thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for
examination. The NBI reported that the
handwriting, the signature, the insertions and/or
additions and the initial were made by one and
the same person. Consequently, Exhibit "C" was
the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, segun la regla de jurisprudencia establecida en la sentencia de 4 de
Exhibit 'C', should be admitted to probate Abril de 1895." 2
although the alterations and/or insertions or
additions above-mentioned were not
However, when as in this case, the holographic Will in dispute had
authenticated by the full signature of the testatrix
only one substantial provision, which was altered by substituting the
pursuant to Art. 814 of the Civil Code. The
original heir with another, but which alteration did not carry the
petitioner contends that the oppositors are
requisite of full authentication by the full signature of the testator, the
estopped to assert the provision of Art. 814 on
effect must be that the entire Will is voided or revoked for the simple
the ground that they themselves agreed thru
reason that nothing remains in the Will after that which could remain
their counsel to submit the Document to the NBI
valid. To state that the Will as first written should be given efficacy is
FOR EXAMINATIONS. This is untenable. The
to disregard the seeming change of mind of the testatrix. But that
parties did not agree, nor was it impliedly
change of mind can neither be given effect because she failed to
understood, that the oppositors would be in
authenticate it in the manner required by law by affixing her full
estoppel.
signature,
The Court finds, therefore, that the provision of
The ruling in Velasco, supra, must be held confined to such
Article 814 of the Civil Code is applicable to
insertions, cancellations, erasures or alterations in a holographic Will,
Exhibit "C". Finding the insertions, alterations
which affect only the efficacy of the altered words themselves but not
and/or additions in Exhibit "C" not to be
the essence and validity of the Will itself. As it is, with the erasures,
authenticated by the full signature of the testatrix
cancellations and alterations made by the testatrix herein, her real
Natividad K. Kalaw, the Court will deny the
intention cannot be determined with certitude. As Manresa had stated
admission to probate of Exhibit "C".
in his commentary on Article 688 of the Spanish Civil Code, whence
Article 814 of the new Civil Code was derived:
WHEREFORE, the petition to probate Exhibit
"C" as the holographic will of Natividad K. Kalaw
... No infringe lo dispuesto en este articulo del
is hereby denied.
Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga
SO ORDERED. palabras tachadas, enmendadas o entre
renglones no salvadas por el testador bajo su
firnia segun previene el parrafo tercero del
From that Order, GREGORIO moved for reconsideration arguing that
mismo, porque, en realidad, tal omision solo
since the alterations and/or insertions were the testatrix, the denial to
puede afectar a la validez o eficacia de tales
probate of her holographic Will would be contrary to her right of
palabras, y nunca al testamento mismo, ya por
testamentary disposition. Reconsideration was denied in an Order,
estar esa disposicion en parrafo aparte de aquel
dated November 2, 1973, on the ground that "Article 814 of the Civil
que determine las condiciones necesarias para
Code being , clear and explicit, (it) requires no necessity for
la validez del testamento olografo, ya porque, de
interpretation."
admitir lo contrario, se Ilegaria al absurdo de que
pequefias enmiendas no salvadas, que en nada
From that Order, dated September 3, 1973, denying probate, and the afectasen a la parte esencial y respectiva del
Order dated November 2, 1973 denying reconsideration, ROSA filed testamento, vinieran a anular este, y ya porque
this Petition for Review on certiorari on the sole legal question of el precepto contenido en dicho parrafo ha de
whether or not the original unaltered text after subsequent alterations entenderse en perfecta armonia y congruencia
and insertions were voided by the Trial Court for lack of con el art. 26 de la ley del Notariado que declara
authentication by the full signature of the testatrix, should be nulas las adiciones apostillas
probated or not, with her as sole heir. entrerrenglonados, raspaduras y tachados en
las escrituras matrices, siempre que no se
salven en la forma prevenida, paro no el
Ordinarily, when a number of erasures, corrections, and
documento que las contenga, y con mayor
interlineations made by the testator in a holographic Will litem not motivo cuando las palabras enmendadas,
been noted under his signature, ... the Will is not thereby invalidated
tachadas, o entrerrenglonadas no tengan
as a whole, but at most only as respects the particular words erased,
importancia ni susciten duda alguna acerca del
corrected or interlined.1 Manresa gave an Identical commentary
pensamiento del testador, o constituyan meros
when he said "la omision de la salvedad no anula el testamento,
 accidentes de ortografia o de purez escrituraria,
sin trascendencia alguna(l).
Mas para que sea aplicable la doctrina de
excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o
entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que
declara nulo un testamento olografo por no estar
salvada por el testador la enmienda del
guarismo ultimo del año en que fue
extendido3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in
toto. No costs.
SO ORDERED.
G.R. No. L-2071 September 19, 1950
Testate estate of Isabel V. Florendo, deceased. TIRSO
DACANAY, petitioner-appellant,
vs.
PEDRO V. FLORENDO, ET AL., oppositor-appellees.
Sotto and Sotto for appellant.
Alafriz and Alafriz for appellees.
OZAETA, J.:
This is a special proceeding commenced in the Court of First
Instance of La Union to probate a joint and reciprocal will executed
by the spouses Isabel V. Florendo and Tirso Dacanay on October 20,
1940. Isabel V. Florendo having died, her surviving spouse Tirso
Dacanay is seeking to probate said joint and reciprocal will, which
provides in substance that whoever of the spouses, joint testators,
shall survive the other, shall inherit all the properties of the latter, with
an agreement as to how the surviving spouse shall dispose of the
properties in case of his or her demise.
The relatives of the deceased Isabel V. Florendo opposed the
probate of said will on various statutory grounds.
Before hearing the evidence the trial court, after requiring and
receiving from counsel for both parties written arguments on the
question of whether or not the said joint and reciprocal will may be
probated in view of article 669 of the Civil Code, issued an order
dismissing the petition for probate on the ground that said will is null
and void ab initio as having been executed in violation of article 669
of the Civil Code. From that order the proponent of the will has
appealed.
Article 669 of the Civil Code reads as follows:
ART. 669. Two or more persons cannot make a will
conjointly or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person.
We agree with appellant's view, supported by eminent
commentators, that the prohibition of article 669 of the Civil Code is
directed against the execution of a joint will, or the expression by two
or more testators of their wills in a single document and by one act,
rather than against mutual or reciprocal wills, which may be
separately executed. Upon this premise, however, appellant argues
that article 669 of the Civil Code has been repealed by Act. No. 190,
which he claims provides for and regulates the extrinsic formalities of
wills, contending that whether two wills should be executed conjointly
or separately is but a matter of extrinsic formality.
The question now raised by appellant has recently been decided by
this court adversely to him in In re Will of Victor Bilbao, supra, p. 144.
It appears in that case that on October 6, 1931, the spouses Victor
Bilbao and Ramona M. Navarro executed a will conjointly, whereby
they directed that "all of our respective private properties both real
and personal, and all of our conjugal properties, and any other
property belonging to either or both of us, be given and transmitted
to anyone or either of us, who may survive the other, or who may
remain the surviving spouse of the other." That will was denied
probate by the Court of First Instance of Negros Oriental on the
ground that it was prohibited by article 669 of the Civil Code. The
surviving spouse as proponent of the joint will also contended that
said article of the Civil Code has been repealed by sections 614 and
618 of the Code of Civil Procedure, Act No. 190. In deciding that
question this court, speaking through Mr. Justice Montemayor, said:
In view of the foregoing, the order appealed from is affirmed, with
We cannot agree to the contention of the appellant that the
costs against the appellant.
provisions of the Code of Civil Procedure on wills have
completely superseded Chapter I, Title III of the Civil Code
on the same subject matter, resulting in the complete
repeal of said Civil Code provisions. In the study we have
made of this subject, we have found a number of cases
decided by this court wherein several articles of the Civil
Code regarding wills have not only been referred to but
have also been applied side by side with the provisions of
the Code of Civil Procedure.
xxx xxx xxx
The provision of article 669 of the Civil Code prohibiting the
execution of a will by two or more persons conjointly or in
the same instrument either for their reciprocal benefit or for
the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision,
especially as regards husband and wife, is that when a will
is made jointly or in the same instrument, the spouse who
is more aggressive, stronger in will or character and
dominant is liable to dictate the terms of the will for his or
her own benefit or for that of third persons whom he or she
desires to favor. And, where the will is not only joint but
reciprocal, either one of the spouses who may happen to
be unscrupulous, wicked, faithless or desperate, knowing
as he or she does the terms of the will whereby the whole
property of the spouses both conjugal and paraphernal
goes to the survivor, may be tempted to kill or dispose of
the other.
Considering the wisdom of the provisions of this article 669
and the fact that it has not been repealed, at least not
expressly, as well as the consideration that its provisions
are not incompatible with those of the Code of Civil
Procedure on the subject of wills, we believe and rule that
said article 669 of the Civil Code is still in force. And we are
not alone in this opinion. Mr. Justice Willard as shown by
his Notes on the Civil Code, on page 48 believes that this
article 669 is still in force. Sinco and Capistrano in their
work on the Civil Code, Vol. II, page 33, favorably cite
Justice Willard's opinion that this article is still in force.
Judge Camus in his book on the Civil Code does not
include this article among those he considers repealed.
Lastly, we find that this article 669 has been reproduced
word for word in article 818 of the New Civil Code (Republic
Act No. 386). The implication is that the Philippine
Legislature that passed this Act and approved the New
Civil Code, including the members of the Code
Commission who prepared it, are of the opinion that the
provisions of article 669 of the old Civil Code are not
incompatible with those of the Code of Civil Procedure.