CIVIL LAW | Probate of holographic will with partial date

CIVIL LAW | S u c c e s s i o n
FIRST DIVISION
[G.R. No. 38338. January 28, 1985.]
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA ROXAS
DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, Petitioners, v. ANDRES R. DE
JESUS, JR., Respondent.
Raul S. Sison Law Office, for Petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco, Velasco and Associates for Ledesa and A.R. de Jesus.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS; DEPARTURE FROM
STRICT STATUTORY REQUIREMENTS; LIBERAL TREND FAVORED. — This will not be the first time
that this Court departs from a strict and literal application of the statutory requirements regarding
the due execution of Wills. We should not overlook the liberal trend of the Civil Code in the manner
of execution of Wills, the purpose of which, in case of doubt is to prevent intestacy.
2. ID.; ID.; ID.; PREVAILING POLICY. — Thus, the prevailing policy is to require satisfaction of the
legal requirements in order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege (Ino v. Ino, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the
exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena, 56 Phil.
282). If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.
3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. — The purpose of the
solemnities surrounding the execution of Wills has been expounded by this Court in Abangan v.
Abangan, 40 Phil. 476, where we ruled that: "The object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity . . ." In particular, a complete date is
required to provide against such contingencies as that of two competing Wills executed on the same
day, or of a testator becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1
Phil. 720). There is no such contingency in this case.
4. ID.; ID.; ID.; DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE UNDER THE
PRINCIPLE OF SUBSTANTIAL COMPLIANCE. — We have carefully reviewed the records of this case
and found no evidence of bad faith and fraud in its execution nor was there any substitution of Wills
and Testaments. There is no question that the holographic Will of the deceased Bibiana Roxas de
Jesus was entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is fatally defective because the date
"FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of the Civil
Code. This objection is too technical to be entertained. As a general rule, the "date" in a holographic
Will should include the day, month, and year of its execution. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the
Will is established and the only issue is whether or not the date "FEB./61" appearing on the
1|Page #SJBL Part 3

holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic
Will should be allowed under the principle of substantial compliance.
DECISION
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco, Presiding
Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the holographic Will of
the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special Proceeding No.
81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus and Bibiana Roxas de
Jesus" was filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters of
Administration had been granted to the petitioner, he delivered to the lower court a document
purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the holographic
Will on July 21, 1973. chanrobles law library
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and 24
thereof, a letter-will addressed to her children and entirely written and signed in the handwriting of
the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61" and states: "This is my will
which I want to be respected altho it is not written by a lawyer. . ." cralaw virtua1aw library
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de Jesus and
Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61" is the holographic Will of
their deceased mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother and
positively identified her signature. They further testified that their deceased mother understood
English, the language in which the holographic Will is written, and that the date "FEB./61" was the
date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate" assailing the
purported holographic Will of Bibiana R. de Jesus because — (a) it was not executed in accordance
with law, (b) it was executed through force, intimidation and/or under duress, undue influence and
improper pressure, and (c) the alleged testatrix acted by mistake and or did not intend, nor could
have intended the said Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the probate of the
holographic Will which he found to have been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that the alleged
holographic Will of the deceased Bibiana R. de Jesus was not dated as required by Article 810 of the
Civil Code. She contends that the law requires that the Will should contain the day, month, and year
of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and disallowed the
probate of the holographic Will on the ground that the word "dated" has generally been held to
include the month, day, and year. The dispositive portion of the order reads: jgc:chanrobles.com.ph
"WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de Jesus, is
hereby disallowed for not having been executed as required by the law. The order of August 24,
1973 is hereby set aside." cralaw virtua1aw library
2|Page #SJBL Part 3

The only issue is whether or not the date "FEB./61" appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil Code which
reads: chanrob1es virtual 1aw library
ART. 810. A person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed." cralaw virtua1aw library
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of the Old
Civil Code require the testator to state in his holographic Will the "year, month, and day of its
execution," the present Civil Code omitted the phrase "Año, mes y dia" and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal construction of the
holographic Will should prevail. chanrobles virtual lawlibrary
Respondent Luz Henson on the other hand submits that the purported holographic Will is void for
non-compliance with Article 810 of the New Civil Code in that the date must contain the year, month,
and day of its execution. The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and day, and that if
any of these is wanting, the holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code because statutes
prescribing the formalities to be observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application of the
statutory requirements regarding the due execution of Wills. We should not overlook the liberal trend
of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy —
"The underlying and fundamental objectives permeating the provisions of the law on wills in this
Project consists in the liberalization of the manner of their execution with the end in view of giving
the testator more freedom in expressing his last wishes, but with sufficient safeguards and
restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and
influence upon the testator.
"This objective is in accord with the modern tendency with respect to the formalities in the execution
of wills." (Report of the Code Commission, p. 103)
In Justice Capistrano’s concurring opinion in Heirs of Raymundo Castro v. Bustos (27 SCRA 327) he
emphasized that: chanrobles.com:cralaw:red
x x x
". . . The law has a tender regard for the will of the testator expressed in his last will and testament
on the ground that any disposition made by the testator is better than that which the law can make.
For this reason, intestate succession is nothing more than a disposition based upon the presumed
will of the decedent." cralaw virtua1aw library
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to guard
against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege
(Ino v. Ino, 11 SCRA 422). If a Will has been executed in substantial compliance with the formalities
of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will
should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,
x x x
". . . More than anything else, the facts and circumstances of record are to be considered in the
application of any given rule. If the surrounding circumstances point to a regular execution of the
will, and the instrument appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any suggestion of bad faith, forgery
3|Page #SJBL Part 3

or fraud, lean towards its admission to probate, although the document may suffer from some
imperfection of language, or other non-essential defect . . ." (Leynez v. Leynez, 68 Phil. 745)
If the testator, in executing his Will, attempts to comply with all the requisites, although compliance
is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is
actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded by this Court
in Abangan v. Abangan, 40 Phil. 476, where we ruled that: jgc:chanrobles.com.ph
"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 .
. ."
cralaw virtua1aw library
In particular, a complete date is required to provide against such contingencies as that of two
competing Wills executed on the same day, or of a testator becoming insane on the day on which a
Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith and fraud in
its execution nor was there any substitution of Wills and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no question as to its genuineness
and due execution. All the children of the testatrix agree on the genuineness of the holographic Will
of their mother and that she had the testamentary capacity at the time of the execution of said Will.
The objection interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61" appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be entertained. chanrobles virtual lawlibrary
As a general rule, the "date" in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is whether or
not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the
Civil Code, probate of the holographic Will should be allowed under the principle of substantial
compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED and SET ASIDE
and the order allowing the probate of the holographic Will of the deceased Bibiana Roxas de Jesus is
reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
4|Page #SJBL Part 3

SECOND DIVISION
[G.R. Nos. 83843-44. April 5, 1990.]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR, ENRICA LABRADOR,
and CRISTOBAL LABRADOR, Petitioners-Appellants, v. COURT OF APPEALS, 1 GAUDENCIO
LABRADOR, and JESUS LABRADOR, Respondents-Appellees.
Benjamin C. Santos Law Offices, for Petitioners.
Rodrigo V. Fontelera for Private Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; DATE MUST BE IN THE WILL ITSELF AND
EXECUTED IN THE HANDS OF THE TESTATOR. — The will has been dated in the hand of the testator
himself in perfect compliance with Article 810. It is worthy of note to quote the first paragraph of the
second page of the holographic will, viz: "And this is the day in which we agreed that we are making
the partitioning and assigning the respective assignment of the said fishpond, and this being in the
month of March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father." The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in the hand of the
testator. These requirements are present in the subject will.
2. ID.; ID.; ID.; ID.; CONSTRUED IN CASE AT BAR. — Respondents claim that the date 17 March
1968 in the will was when the testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective assignments of the said fishpond,"
and was not the date of execution of the holographic will; hence, the will is more of an "agreement"
between the testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which defines a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree
the disposition of his estate, to take effect after his death." Respondents are in error. The intention
to show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator’s instruction or decision to be
followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to control the disposition of his
estate.
3. ID.; ID.; HEIR REDEEMING A PROPERTY ILLEGALLY SOLD; ENTITLED TO REIMBURSEMENT. —

Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court’s conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
DECISION
5|Page #SJBL Part 3

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one Melecio Labrador is
dated, as provided for in Article 810 2 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the
Municipality of Iba, province of Zambales, where he was residing, leaving behind a parcel of land
designated as Lot No. 1916 under Original Certificate of Title No. P-1652, and the following heirs,
namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all
surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica Labrador
and Cristobal Labrador, filed in the court a quo a petition for the probate docketed as Special
Proceeding No. 922-I of the alleged holographic will of the late Melecio Labrador. chanrobles.com.ph : virtual law library
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by his heirs),
and Gaudencio Labrador filed an opposition to the petition on the ground that the will has been
extinguished or revoked by implication of law, alleging therein that on September 30, 1971, that is,
before Melecio’s death, for the consideration of Six Thousand (P6,000) Pesos, testator Melecio
executed a Deed of Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus
and Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been cancelled by
T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for
only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and Jesus, for the
annulment of said purported Deed of Absolute Sale over a parcel of land which Sagrado allegedly had
already acquired by devise from their father Melecio Labrador under a holographic will executed on
March 17, 1968, the complaint for annulment docketed as Civil Case No. 934-I, being premised on
the fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court rendered a joint
decision dated February 28, 1985, allowing the probate of the holographic will and declaring null and
void the Deed of Absolute Sale. The court a quo had also directed the respondents (the defendants in
Civil Case No. 934-I) to reimburse to the petitioners the sum of P5,000.00 representing the
redemption price for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro. chanroblesvirtualawlibrary
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 modified
said joint decision of the court a quo by denying the allowance of the probate of the will for being
undated and reversing the order of reimbursement. Petitioners’ Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of June 13, 1988. Hence,
this petition.
Petitioners now assign the following errors committed by respondent court, to wit: chanrob1es virtual 1aw library
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE OF THE
HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER COURT DIRECTING
THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE
WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is quoted as
6|Page #SJBL Part 3

follows: jgc:chanrobles.com.ph
"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned and shared or the partition in
favor of SAGRADO LABRADOR which is the fishpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less one hectare,
and the boundary at the South is the property and assignment share of ENRICA LABRADOR, also
their sister, and the boundary in the West is the sea, known as the SEA as it is, and the boundary on
the NORTH is assignment belonging to CRISTOBAL LABRADOR, who likewise is also their brother.
That because it is now the time for me being now ninety three (93) years, then I feel it is the right
time for me to partition the fishponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among themselves, those among
brothers and sisters, for it is I myself their father who am making the apportionment and delivering
to each and everyone of them the said portion and assignment so that there shall not be any cause
of troubles or differences among the brothers and sisters. chanrobles lawlibrary : rednad
II — Second Page
And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father.
Now, this is the final disposition that I am making in writing and it is this that should be followed and
complied with in order that any differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in good relations among themselves,
brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees and all
others like the other kind of bamboo by name of Bayog, it is their right to get if they so need, in
order that there shall be nothing that anyone of them shall complain against the other, and against
anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said property is located, the same being
the fruits of our earnings of the two mothers of my children, there shall be equal portion of each
share among themselves, and or to be benefited with all those property, which property we have
been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here hereof
manifesting of the truth and of the fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied with, by all the brothers and sisters,
the children of their two mothers — JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN."
(p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the date is
not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810. It
is worthy of note to quote the first paragraph of the second page of the holographic will, viz: jgc:chanrobles.com.ph
"And this is the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the matter to be followed. And the one who
made this writing is no other than MELECIO LABRADOR, their father." (Italics supplied) (p. 46, Rollo)
7|Page #SJBL Part 3

The law does not specify a particular location where the date should be placed in the will. The only
requirements are that the date be in the will itself and executed in the hand of the testator. These
requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his
beneficiaries entered into an agreement among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries thereof to
the prejudice of other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as "an act whereby a person is permitted, with the formalities
prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his
death." cralaw virtua1aw library
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the
will is plain from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the
will was not an agreement but a unilateral act of Melecio Labrador who plainly knew that what he
was executing was a will. The act of partitioning and the declaration that such partitioning as the
testator’s instruction or decision to be followed reveal that Melecio Labrador was fully aware of the
nature of the estate property to be disposed of and of the character of the testamentary act as a
means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the redemption
price as erroneous, respondent court’s conclusion is incorrect. When private respondents sold the
property (fishpond) with right to repurchase to Navat for P5,000, they were actually selling property
belonging to another and which they had no authority to sell, rendering such sale null and void.
Petitioners, thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby
REVERSED. The holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.
Endnotes:
1. Penned by Justice Jorge S. Imperial and concurred in by Justices Jose A.R. Melo and Manuel C.
Herrera.
2. Article 810 provides: 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.
8|Page #SJBL Part 3

SECOND DIVISION
[G.R. No. 106720. September 15, 1994.]
SPOUSES ROBERTO AND THELMA AJERO, Petitioners, v. THE COURT OF APPEALS AND
CLEMENTE SAND, Respondents.
DECISION
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840,
dated March 30, 1992, the dispositive portion of which reads: jgc:chanrobles.com.ph
"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs." cralaw virtua1aw library
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-
37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who
died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero,
private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand,
Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. chanrobles.com.ph : virtual law library
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent’s
holographic will. They alleged that at the time of its execution, she was of sound and disposing mind,
not acting under duress, fraud or undue influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament’s body nor the
signature therein was in decedent’s handwriting; it contained alterations and corrections which were
not duly signed by decedent; and, the will was procured by petitioners through improper pressure
and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that
said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent’s holographic will to probate.
It found, inter alia:jgc:chanrobles.com.ph
"Considering then that the probate proceedings herein must decide only the question of identity of
the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by
law nor for lack of testamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different from the will
actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will
was not written in the handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was alleged to have been executed
by the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the
identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
9|Page #SJBL Part 3

"x x x
"While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has
been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will
in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three
(3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have been
presented and have explicitly and categorically identified the handwriting with which the holographic
will in question was written to be the genuine handwriting and signature of the testatrix. Given then
the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated
and signed in the handwriting of the testatrix has been complied with.
"x x x
"As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente
Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will in
question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be disposed of, the proper object of her
bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even
had detailed knowledge of the nature of her estate. She even identified the lot number and square
meters of the lots she had conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing that she knows the
character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary capacity of
the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of herein
holographic will. While it was alleged that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution
of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her independence of
character and to some extent, her sense of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in question herein only refer to the
making of a will and not as to the specific testamentary provisions therein which is the proper
subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on succession that in case of doubt,
testate succession should be preferred over intestate succession, and the fact that no convincing
grounds were presented and proven for the disallowance of the holographic will of the late Annie
Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent’s will was dismissed.
The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity."
4 It held that the decedent did not comply with Articles 813 and 814 of the New Civil Code, which
read, as follows: jgc:chanrobles.com.ph
"Article 813: When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions." cralaw virtua1aw library
"Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature." cralaw virtua1aw library
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but
not dated. It also found that the erasures, alterations and cancellations made thereon had not been
authenticated by decedent. chanrobles lawlibrary : rednad
10 | P a g e #SJBL Part 3
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following
cases: jgc:chanrobles.com.ph
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary,
or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing his signature thereto." cralaw virtua1aw library
In the same vein, Article 839 of the New Civil Code reads: jgc:chanrobles.com.ph
"Article 839: The will shall be disallowed in any of the following cases: chanrob1es virtual 1aw library
(1) If the formalities required by law have not been complied with;
(2 If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(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." cralaw virtua1aw library
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit
a holographic will to probate, the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent’s last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the necessary
testamentary capacity at the time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed
in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New
Civil Code, ante, were not complied with, hence, it disallowed the probate of said will. This is
erroneous. chanrobles virtual lawlibrary
We reiterate what we held in Abangan v. Abangan, 40 Phil. 476, 479 (1919), that: jgc:chanrobles.com.ph
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustrative of the testator’s last will, must be
disregarded." cralaw virtua1aw library
For purposes of probating non-holographic wills, these formal solemnities include the subscription,
attestation, and acknowledgment requirements under Articles 8105 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that
they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of
the New Civil Code, thus: jgc:chanrobles.com.ph
"A person may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed." (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will
that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the
dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date
some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with
the provisions of Article 814. In the case of Kalaw v. Relova, 132 SCRA 237, 242 (1984), this Court
held:chanrobles virtual lawlibrary
"Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. Manresa
gave an identical commentary when he said ‘la omision de la salvedad no anula el testamento, segun
la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.’" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of
the holographic will or on testator’s signature, 9 their presence does not invalidate the will itself. 10
The lack of authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of
dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810). The distinction can be
traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering
holographic wills are taken. They read as follows: jgc:chanrobles.com.ph
"Article 678: A will is called holographic when the testator writes it himself in the form and with the
requisites required in Article 688.
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding to the year of its
execution, written in its entirety by the testator and signed by him, and must contain a statement of
the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify them over
his signature.
"Foreigners may execute holographic wills in their own language." cralaw virtua1aw library
This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Code — and not those found in Articles 813 and 814 of the same Code —
are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house
and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be
affirmed. cralawnad
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of
the will sought to be probated. However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain provisions of the will. 11 In the case
at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is
in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her father’s other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the
invalidity of the disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The
Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated
November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. cralawnad
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
Endnotes:
1. Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente), Ricardo J. Francisco
(chairman), and Pacita Canizares-Nye.
2. Presided by Judge Felimon H. Mendoza.
3. Rollo, pp. 37-39.
4. Impugned Decision, p. 5; Rollo, p. 46.
5. Pecson v. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of the Philippines
Annotated (1989), pp. 145-146.
6. See Montanano v. Suesa, 14 Phil. 676 (1909).
7. See Fernando v. Villalon, 3 Phil. 386 (1904).
8. See Velasco v. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain,
dated April 4, 1895; See also, 3 MANRESA, Commentarios al ARTURO M. TOLENTINO, Commentaries
& Jurisprudence on the Civil Code (1973), p. 107, citing Castan 341, 5 Valverde 82; 3 AMBROSIO
PADILLA, Civil Code Annotated (1987), pp. 157-158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-
AQUINO (1990), p. 42.
9. 3 PARAS, op cit.
10. It must be noted, however, that in Kalaw, this Court laid down an exception to the general rule,
when it invalidated the entire will because of an unauthenticated erasure made by the testator. In
that case, the will had only one substantial provision. This was altered by substituting the original
heir with another, with such alteration being unauthenticated. This Court held that the whole will was
void "for the simple reason that nothing remains in the Will after (the provision is invalidated) which
could remain valid. To state that the Will as first written should be given efficacy is to disregard the
seeming change of mind of the testatrix. But, that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full signature."
library
cralaw virtua1aw
11. Nepomuceno v. Court of Appeals, 139 SCRA 206 (1985); See Nuguid v. Nuguid, 17 SCRA 449
(1966); See also Cayetano v. Leonidas, 129 SCRA 522 (1984).
FIRST DIVISION
[G.R. No. L-40207. September 28, 1984.]
ROSA K. KALAW, Petitioner, v. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI
of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, Respondents.
Leandro H . Fernandez for Petitioner.
Antonio Quintos and Jose M. Yacat for Private Respondents.
SYLLABUS
CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS THEREIN NOT

AUTHENTICATED BY FULL SIGNATURE OF TESTATRIX; CASE AT BAR. — Ordinarily, when a number
of erasures, corrections, and interlineations made by the testator in a holographic Will have not been
noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined. (Velasco v. Lopez, 1 Phil. 720, 725
[1903], citing a Decision of the Supreme Court of Spain of April 4, 1895) Manresa gave an identical
commentary when he said "la omission de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." (Comentarios al Codigo Civil
Español, Quinta edicion, Tomo 5, Lib. III — Tit. III — Cap. I — Art. 688, pag. 483) However, when as
in this case, the holographic Will in dispute had only one substantial provision, which was altered by
substituting the original heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which could remain valid. To
state that the Will as first written should be given efficacy is to disregard the seeming change of
mind of the testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature. The ruling in Velasco,
supra, must be held confined to such insertions, cancellations, erasures or alterations in a
holographic Will, which affect only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude.
TEEHANKEE, J., concurring: chanrob1es virtual 1aw library
CIVIL LAW; WILLS; PROBATE OF ALTERED WILL PROPERLY DENIED SINCE IT WAS NOT DULY
AUTHENTICATED BY FULL SIGNATURE OF EXECUTRIX; CASE AT BAR. — I concur. Rosa. having
appealed to this Court on a sole question of law, is bound by the trial court’s factual finding that the
peculiar alterations in the holographic will crossing out Rosa’s name and instead inserting her brother
Gregorio’s name as sole heir and "sole executrix" were made by the testatrix in her own handwriting.
(I find it peculiar that the testatrix who was obviously an educated person would unthinkingly make
such crude alterations instead of consulting her lawyer and writing an entirely new holographic will in
order to avoid any doubts as to her change of heir. It should be noted that the first alteration
crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as sole heir is not even
initialed by the testatrix. Only;’ the second alteration crossing out "sister Rosa K. Kalaw" and
inserting "brother Gregorio Kalaw" as "sole executrix" is initiated). Probate of the radically altered
will replacing Gregorio for Rosa as sole heir is properly denied, since the same was not duly
authenticated by the full signature of the executrix as mandatory required by Article 814 of the Civil
Code. The original unaltered will naming Rosa as sole heir cannot, however, be given effect in view
of the trial court’s factual finding that the testatrix had by her own handwriting substituted Gregorio
for Rosa, so that there is no longer any will naming Rosa as sole heir. The net result is that the
testatrix left no valid will and both Rosa and Gregorio as her next of kin succeed to her intestate
estate.
DECISION
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of his
deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of Batangas,
Branch VI, Lipa City, for the probate of her holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows: chanrob1es virtual 1aw library
My Last will and Testament
In the name of God, Amen.
I, Natividad K. Kalaw, Filipino, 63 years 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 be buried in the cemetery of the catholic church of Lipa City. In accordance with
the rites of said Church, and that my executrix hereinafter named provide and erect at the expense
of my state a suitable monument to perpetuate my memory.
2. I give, device and bequeath all my property real and personal to my beloved brother Gregorio K.
Kalaw to have and to hold the same as his property absolutely and unconditionally.
3. I hereby appoint my said brother Gregorio K. Kalaw as sole executive of this my last will and
testament, and it is my will that said executrix be exempted from filing a bond.
In witness where of I have hereunto set my hand this 24th day of Dec., 1968.
Natividad K. Kalaw
Testatrix
Witnesses: chanrob1es virtual 1aw library
Lydia S. Recio
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: jgc:chanrobles.com.ph
"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." cralaw virtua1aw library
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, 1973, reading in
part:jgc:chanrobles.com.ph
"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 will, Exhibit ‘C’, should be admitted
to probate although the alterations and/or insertions or additions above-mentioned were not
authenticated by the full signature of the testatrix pursuant to Art. 814 of the Civil Code. The
petitioner contends that the oppositors are estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not agree, nor was it impliedly understood, that
the oppositors would be in estoppel.
"The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable to Exhibit
‘C’. Finding the insertions, alterations and/or additions in Exhibit ‘C’ not to be authenticated by the
full signature of the testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit ‘C’.
"WHEREFORE, the petition to probate Exhibit ‘C’ as the holographic will of Natividad K. Kalaw is
hereby denied." cralaw virtua1aw library
"SO ORDERED." cralaw virtua1aw library
From that Order, GREGORIO moved for reconsideration arguing that since the alterations and/or
insertions were made by the testatrix, the denial to probate of her holographic Will would be contrary
to her right of testamentary disposition. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being clear and explicit, (it) requires no
necessity for interpretation." cralaw virtua1aw library
From that order, dated September 3, 1973, denying probate, and the Order dated November 2, 1973
denying reconsideration, ROSA filed this Petition for Review on Certiorari on the sole legal question of
whether or not the original unaltered text after subsequent alterations and insertions were voided by
the Trial Court for lack of authentication by the full signature of the testatrix, should be probated or
not, with her as sole heir. cralawnad
Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a
holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular words erased, corrected or interlined. 1 Manresa
gave an identical commentary when he said "la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only one substantial provision,
which was altered by substituting the original heir with another, but which alteration did not carry
the requisite of full authentication by the full signature of the testator, the effect must be that the
entire Will is voided or revoked for the simple reason that nothing remains in the Will after that
which could remain valid. To state that the Will as first written should be given efficacy is to
disregard the seeming change of mind of the testatrix. But that change of mind can neither be given
effect because she failed to authenticate it in the manner required by law by affixing her full
signature.
The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but
not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations
made by the testatrix herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article 814 of the new
Civil Code was derived: jgc:chanrobles.com.ph
". . . No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara la
nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o entre renglones,
no salvadas por el testador bajo su firma, segun previene el parrafo tercero del mismo, porque, en
realidad, tal omision solo puede afectar a la validez o eficacia de tales palabras, y nunca al
testamento mismo, ya por estar esa disposicion en parrafo aparte de aquel que determina las
condiciones necesarias para la validez del testamento olografo, ya porque, de admitir lo contrario, se
llegaria al absurdo de que pequeñas enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armoniay congruencia con el art. 26 de la ley del
Notariado, que declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y tachados en
las escrituras matrices, siempre que no se salven en la forma prevenida, pero no el documento que
las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o entrerrenglonadas
no tengan importancia ni susciten duda alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortografia o de purez escrituraria, sin trascendencia alguna(l).
"Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es preciso que
las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que no afecten, alteren
ni varien de modo substancial la expresa 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 extendido" 3
(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.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.
Separate Opinions
TEEHANKEE, J., concurring: chanrob1es virtual 1aw library
I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court’s
factual finding that the peculiar alterations in the holographic will crossing out Rosa’s name and
instead inserting her brother Gregorio’s name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic will in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.) Probate
of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as mandatorily required by Article
814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however, be even
effect in view of the trial court’s factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kin succeed to
her intestate estate.
Endnotes:
1. Velasco v. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of Spain of April
4, 1895.
2. Comentarios al Codigo Civil Español, Quinta edicion, Tomo 5, Lib, III - Tit. III — Cap. I — Art.
688; pag. 483.
3. Ibid.
EN BANC
[G.R. No. L-12190. August 30, 1958.]
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, Petitioner-Appellant, v. ILDEFONSO YAP, Oppositor-Appellee.
Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.
Arturo M. Tolentino for Appellee.
SYLLABUS
1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. — The
execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself as material proof of
authenticity.
DECISION
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 these 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: jgc:chanrobles.com.ph
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamaganakang
sumusunod: chanrob1es virtual 1aw library
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
‘At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking
asawang si Ildefonso 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 pañgalang Felicidad Esguerra-Alto. At kung ito ay may kakulañgan 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: chanrob1es virtual 1aw library
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 Rosario Gan Jimenez, a niece. To
these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his
well-known violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap
returned the purse to Felina, only to demand it the next day shortly before the death of Felicidad.
Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and
read the will for the last time. 2
From the oppositor’s proof it appears that Felicidad Esguerra had been suffering from heart disease
for several years before her death; that she had been treated by prominent physicians, Dr. Agerico
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that thereafter she felt well and
after visiting interesting places, the couple returned to this country in August 1950. However, her
ailment recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised and
alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned 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 permited 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." cralaw virtua1aw library
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 authenticity (Abangan v. Abangan, 40 Phil.,
476) and to avoid that those who have no right to succeed the testator would succeed him and be
benefited with the probate of same. (Mendoza v. Pilapil, 40 off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly proved. (Rodriguez
v. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.) .
Authenticity and due execution is the dominant requirement 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 v. Delfinado 34 Phil., 291; Tolentino v. 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 of 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." cralaw virtua1aw library
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 authenticity 3 — the testator’s handwriting
— has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator?
How can the oppositor prove that such document was not in the testator’s handwriting? His
witnesses who know testator’s handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other documents admittedly, or
proven to be, in the testator’s hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent’s witnesses may be honest and truthful; but they
may have been shown a faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested by
exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen
and read a document which he believed was in the deceased’s handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only as to the
execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will
by secondary evidence — the testimony of witnesses, in lieu of the original document. Yet such Rules
could not have contemplated holographic wills which could not then be validly made here. (See also
Sec. 46, Rule 123; Art. 830-New Civil Code.) .
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may
be lost or stolen 4 — an implied admission that such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art.
689) who shall subscribe it and require its identity to be established by the three witnesses who
depose that they have no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall order that it be filed (Art.
693). All these, imply presentation of the will itself. Art. 692 bears the same implication, to a greater
degree. It requires that the surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit with respect to the
authenticity of the will." As it is universally admitted that the holographic will is usually done by the
testator and by himself alone, to prevent others from knowing either its execution or its contents,
the above article 692 could not have the idea of simply permitting such relatives to state whether
they know of the will, but whether in the face of the document itself they think the testator wrote 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 llenaron 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 su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no estar firmado 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 . . . ." cralaw virtua1aw library
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 Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano
daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea confirmada
la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios
confirmen el escripto de la manda otra vez, y en esta manera vala la manda." (Art. 689, Scaevola -
Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators
handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance
with his holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic
will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V,
page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal
may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto
E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself;
in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now).
The loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary)
deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on
the particular day, the likelihood that they would be called by the testator, their intimacy with the
testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend
themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive
anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could
engineer the whole fraud this way: after making a clever or passable imitation of the handwriting
and signature of the deceased, he may contrive to let three honest and credible witnesses see and
read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in
all good faith affirm its genuineness and authenticity. The will having been lost — the forger may
have purposely destroyed it in an "accident" — the oppositors have no way to expose the trick and
the error, because the document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the substitution of the unsigned
pages, which may be the most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature — feasibility
of forgery — would be added to the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in
the case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting
which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by
the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge’s
disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard
to believe that the deceased should show her will precisely to relatives who had received nothing
from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give
them a share, or threaten to reveal its execution to her husband Ildefonso Yap. And this leads to
another point: if she wanted so much to conceal the will from her husband, why did she not entrust
it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband’s trip to
Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia
and Felix, JJ., concur.
Endnotes:
1. Now a member of the Court of Appeals.
2. The contents of the alleged will are for the purposes of this decision, immaterial.
3. "Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del
testador." (Seaevola, Codigo Civil, Tomo 12, p. 348.) .
4. V. Sanchez Roman, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil
Español (1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
5. V. Sanchez Roman Op. Cit. Vol. 6, p. 357.
6. Manresa, Codigo Civil, 1932, Vol. 5, p. 481.
7. We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply
to our New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills,
i.e., those known to the Spanish Civil Law, before Act 190.
8. Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon

copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased
may be exhibited and tested before the probate court.
9. We are aware of some American cases that admitted lost holographic wills, upon verbal testimony.
(Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed.
Anyway it is safer to follow, in this matter, the theories of the Spanish law.
10. Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:
"Holographic wills are peculiarly dangerous in case of persons who have written very little. The
validity of these wills depends, exclusively on the authenticity of handwriting, and if writing
standards are not procurable, or not contemporaneous, the courts are left to the mercy of the
mendacity of witnesses. It is questionable whether the recreation of the holographic testament will
prove wise." (Lawyer’s Journal, Nov. 30, 1950, pp. 556-557.)
11. Intestate of Suntay, 50 Off. Gaz., 5321.
FIRST DIVISION
[G.R. No. L-58509. December 7, 1982.]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA,

deceased, MARCELA RODELAS, Petitioner-Appellant, v. AMPARO ARANZA, ET AL.,
oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for Petitioner-Appellant.
Cesar C. Paralejo for Oppositor-Appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant’s petition for the allowance of the holographic
will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will which
was presented for probate, cannot stand in lieu of the lost original, for the law regards the document
itself as the material proof of the authenticity of the said will, citing the case of Gan v. Yap, 104 Phil.
509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court’s order of dismissal, held that a photostatic or
xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the
handwriting of the deceased can he determined by the probate court, as comparison can be made
with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. — Pursuant

to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the Court
after its due execution has been proved.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. — The probate of holographic wills may be
uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND
NO OTHER COPY IS AVAILABLE; REASON. — If the holographic will has been lost or destroyed and
no other copy is available, the will cannot be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. —
A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be
made with the standard writings of the testator. In the case of Gan v. Yap, 104 Phil. 509, the Court
ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as material
proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested
before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed
holographic will may be admitted because then the authenticity of the handwriting of the deceased
can be determined by the probate court.
DECISION
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals: jgc:chanrobles.com.ph
". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the
probate of the holographic will of Ricardo B. Bonilla and the issuance of letters testamentary in her
favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza
Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim Bonilla on the following
grounds: jgc:chanrobles.com.ph
"(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will
within twenty days of the death of the testator as required by Rule 75, section 2 of the Rules of
Court: jgc:chanrobles.com.ph
"(2) The alleged copy of the alleged holographic will did not contain a disposition of property after
death and was not intended to take effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise
it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or otherwise, executed and attested as
required by law.
"The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No.
8275). Their motion was granted by the court in an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees moved again to
dismiss the petition for the probate of the will. They argued that: jgc:chanrobles.com.ph
"(1) The alleged holographic was not a last will but merely an instruction as to the management and
improvement of the schools and colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary
wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of
February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was contrary to
law and settled pronouncements and rulings of the Supreme Court, to which the appellant in turn
filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The court said: chanrob1es virtual 1aw library
‘. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
‘In the case of Gan v. Yap, 104 Phil. 509, 522, the Supreme Court held that ‘in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the material
proof of authenticity of said wills.
‘MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from the
time of the execution of the will to the death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent had discarded before his death his
allegedly missing Holographic Will.
Appellant’s motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which
it is contended that the dismissal of appellant’s petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:jgc:chanrobles.com.ph
"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED
BY A COPY THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS
DEATH THE MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING APPELLANT’S WILL." cralaw virtua1aw library
The only question here is whether a holographic will which was lost or can not be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other copy
is available, the will can not be probated because the best and only evidence is the handwriting of
the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gan v. Yap, 104 Phil. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant’s motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
SECOND DIVISION
[G.R. No. L-14003. August 5, 1960.]
FEDERICO AZAOLA, Petitioner-Appellant, v. CESARIO SINGSON, Oppositor-Appellee.
F. Lavides and L. B. Alcuaz for Appellant.
Vicente J. Cuna and P. S. Singson for Appellee.
SYLLABUS
1. WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF; REQUISITE AS TO NUMBER OF
WITNESSES. — Since the authenticity of the holographic will was not contested, proponent was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of having
the probate denied. Since no witness may have been present at the execution of a holographic will,
none being required by law, it becomes obvious that the existence of witnesses possessing the
requisite qualifications is a matter beyond the control of the proponent.
2. ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE. — Where the will is
holographic, no witness need be present and the rule requiring production of three witnesses must
be deemed merely permissive if absurd results are to be avoided.
3. ID.; RESORT TO EXPERT EVIDENCE. — Under Article 811, the resort to expert evidence is
conditioned by the words "if the Court deem it necessary", which reveals that what the law deems
essential is that the Court should be convinced of the will’s authenticity.
DECISION
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): jgc:chanrobles.com.ph
"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 the 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 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 therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted that the holographic will was handed to
him by the testatrix, "apparently it must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the same witness was asked by counsel if
he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the penmanship
referred to in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix’),
he answered, "I would definitely say it is hers" ; that it was also established in the proceedings that
the assessed value of the property of the deceased in Luskot, Quezon City, is in the amount of
P7,000.00." cralaw virtua1aw library
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."
virtua1aw library
cralaw
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: jgc:chanrobles.com.ph
"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 witness referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted to. (691a)"
We agree with the appellant that since the authenticity of the will was not contested, he was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, we are of the opinion that Article 811 of our present Civil Code can not be interpreted as
to require the compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator." There may be no available witness acquainted with
the testator’s hand; or even if so familiarized, the 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." cralaw virtua1aw library
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 v. Delfinado, 45 Phil., 291; Tolentino v. 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 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.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely remarks: jgc:chanrobles.com.ph
"La manera como esta concebida la redacción del último apartado de dicho precepto induce la
conclusión 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 ológrafo, aunque ya
estén 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 ológrafo lo hace necesario para mayor garantia de todos los intereses comprometidos en
aquel.
En efecto, el cotejo pericial de letras puede ser una comfirmación 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 averiguar y declarar. Para eso se ha escrito la frase del citado último
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 de formarse con independencia de los sucesos y de su
significación, para responder debidamente de las resoluciones que haya de dictar." cralaw virtua1aw library
And because the law leaves it to the trial court to decide 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.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepción, Barrera, and Gutiérrez David, JJ., concur.
FIRST DIVISION
[G.R. No. 123486. August 12, 1999.]
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, Petitioners, v. EVANGELINE R.

CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, Respondents.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals 1 and its
resolution denying reconsideration, ruling: jgc:chanrobles.com.ph
"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. chanrobles law library : red
"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: chanrob1es virtual 1aw library
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 petition 3 for probate of the holographic will of the deceased,
who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde 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 the 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 opposition 5 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 the 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. chanrobles law library
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of
presenting their evidence, filed a demurrer 6 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: jgc:chanrobles.com.ph
"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 produce 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 with 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 the 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.chanrobles.com:cralaw:red
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 intestate 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 deceased 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. chanrobles law library
The holographic will which was written in Visayan, is translated in English as follows: jgc:chanrobles.com.ph
"Instruction
"August 30, 1978
"1. My share at Cogon, Raminal Street, for Evangeline Calugay.
"(Sgd) Matilde Vda de Ramonal
"August 30, 1978
"2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
"August 30, 1978
"3. My jewelry’s shall be divided among: jgc:chanrobles.com.ph
"1. Eufemia Patigas
"2. Josefina Salcedo
"3. Evangeline Calugay
"August 30, 1978
"4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
"August 30, 1978
"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay,
Helen must continue with the Sta. Cruz, once I am no longer around.
"August 30, 1978
"6. Bury me where my husband Justo is ever buried.
"August 30, 1978
"Gene and Manuel: jgc:chanrobles.com.ph
"Follow my instruction in order that I will rest peacefully.
"Mama
"Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal was
meritorious. Citing the decision in the case of Azaola v. Singson, 109 Phil. 102, penned by Mr. Justice
J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:
jgc:chanrobles.com.ph
". . . even if the genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present civil code can not be interpreted as to require the compulsory presentation
of three witnesses to identify the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of the holographic will, none being
required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be witnesses "who know
the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the
law does not express) "that the will and the signature are in the handwriting of the testator." There
may be no available witness acquainted with the testator’s hand; or even if so familiarized, the
witness 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." cralaw virtua1aw library
"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. chanrobles virtual lawlibrary
"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 v. Delfinado, 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 v. 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
and signature therein, and allowed the will to probate. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
Hence, this petition.
The petitioners raise the following issues: chanrob1es virtual 1aw library
(1) Whether or not the ruling of the case of Azaola v. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to
present credible evidence to prove that the date, text, and signature on the holographic will were
written entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will
of Matilde Seño Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a contested
holographic will, that at least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The
word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes
an imperative obligation and is inconsistent with the idea of discretion and that the presumption is
that the word "shall," when used in a statute is mandatory." 11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to
prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and
the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present petition is to determine the true
intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to
establish the true intent of the testator.chanrobles law library : red
It will be noted that not all the witnesses presented by the respondents testified explicitly that they
were familiar with the handwriting of the testator. In the case of Augusto Neri, clerk of court, Court
of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the signature appearing in the
holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the
signature of the deceased in the voters’ affidavit, which was not even produced as it was no longer
available.
Matilde Ramonal Binanay, on the other hand, testified that: chanrob1es virtual 1aw library
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 occupation or how did Matilde Vda de
Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets. 12
x x x
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir. 13
x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of
the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of
the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten. 14
x x x
Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which
you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?
law library
chanrobles.com : virtual
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde
Q. To whom?
A. To her creditors. 15
x x x
Q. You testified that at the time of her death she left a will. I am showing to you a document with its
title "tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature. 16
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either
mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or
write a note. chanrobles virtual lawlibrary
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was
not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She
testified that:chanrob1es virtual 1aw library
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de
Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother’s possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession of
your mother?
A. 1985. 17
x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will. 18
In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners,
the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will
a secret to petitioners and revealing it only after the death of Matilde Seño Vda. de Ramonal. chanrobles virtual lawlibrary
In the testimony of Ms. Binanay, the following were established: chanrob1es virtual 1aw library
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely and she could go to her
building to collect rentals, is that correct?
A. Yes, sir. 19
x x x
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.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir. 20
x x x
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? cralawnad
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 here refers to one of
the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the
alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice
the hesitancy and tremors, do you notice that?
A. Yes, sir. 21
Evangeline Calugay declared that the holographic will was written, dated and signed in the
handwriting of the testator. She testified that: chanrob1es virtual 1aw library
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to the market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde
Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth. 22
x x x
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated August 30, 1978 there is a
signature here below item No. 1, will you tell this court whose signature is this? chanroblesvirtual|awlibrary
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature. 23
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the
deceased was because she lived with her since birth. She never declared that she saw the deceased
write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that: chanrob1es virtual 1aw library
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal. 24
x x x
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate
children?
A. As far as I know they have no legitimate children.25 cralaw:red
x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that,
Fiscal?
A. It is about the project partition to terminate the property, which was under the court before. 26
x x x
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? chanrobles law library
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
x x x
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
x x x
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. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
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
x x x
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 v. Singson, 31 ruling that the requirement is merely directory and not mandatory. chanrobles law library : red
In the case of Ajero v. 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." cralaw virtua1aw library
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. cralawnad
There was no opportunity for an expert to compare the signature and the handwriting of the
deceased with other documents signed and executed by her during her lifetime. The only chance at
comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked
Ms. Binanay to compare the documents which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased
expressed doubts as to the authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when
compared with other documents written by the testator. The signature of the testator in some of the
disposition is not readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 33 and the signatures in
several documents such as the application letter for pasture permit dated December 30, 1980, 34
and a letter dated June 16, 1978, 35 the strokes are different. In the letters, there are continuous
flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic
will. We, therefore, cannot be certain that the 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. chanroblesvirtual|awlibrary
No costs.
SO ORDERED.
Davide Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.
Endnotes:
1. In CA-G.R. CV No. 31365, promulgated on October 9, 1995, Justice Pedro A. Ramirez, ponente,
Justices Angelina Sandoval Gutierrez and Conrado M. Vasquez, Jr., concurring, CA Rollo, pp. 83-92.
2. Decision, Court of Appeal records, pp. 83-93.
3. Original Records, Petition, pp. 1-7.
4. Ibid., p. 4.
5. Original Record, Opposition, pp. 13-17.
6. Demurrer to Evidence, pp. 140-155, October 13, 1990.
7. Original Records, Order, p. 192.
8. Ibid., Notice of Appeal (November 29, 1990), p. 194.
9. Court of Appeals Rollo, Decision, pp. 83-92.
10. Ibid.
11. Pioneer Texturing Corporation v. National Labor Relations Commission, 280 SCRA 806 (1997);
see also Director of Lands v. Court of Appeals, 276 SCRA 276 (1997); Cecilleville Realty and Service
Corporation v. Court of Appeals, 278 SCRA 819 (1997); Baranda v. Gustilo, 165 SCRA 757 (1988)
12. TSN, September 5, 1990, p. 23.
13. Ibid., p. 24.
14. TSN, September 5, 1990, pp. 24-26.
15. Ibid., pp. 28-29.
16. TSN, September 5, 1990, pp. 28-29.
17. TSN, September 5, 1990, p. 48.
18. TSN, September 5, 1990, p. 49.
19. TSN, p. 62.
20. TSN, pp. 58-59.
21. TSN, pp. 64-66.
22. TSN, September 27, 1990, pp. 145-147.
23. TSN, p. 148.
24. TSN, September 6, 1990, p. 74.
25. Ibid.
26. TSN, September 6, 1990, pp. 76-77.
27. Ibid.
28. TSN, September 6, 1990, pp. 79-80.
29. TSN, pp. 80-82.
30. TSN, September 6, 1990, pp. 83-84.
31. Supra.
32. 236 SCRA 489 (1994)
33. Original Record, Exhibit "S", p. 101.
34. Ibid., Exhibit "T", p. 103.
35. Ibid., Exhibit "V", p. 105.
EN BANC
[G.R. No. L-20234. December 23, 1964.]
PAULA DE LA CERNA, ET AL., Petitioners, v. MANUELA REBACA POTOT, ET AL., and THE
HONORABLE COURT OF APPEALS, Respondents.
Philip M. Alo and Crispin M. Menchavez, for Petitioners.
Nicolas Jumapao for Respondents.
SYLLABUS
1. JUDGMENTS; PROBATE COURTS; ERROR OF LAW DOES NOT AFFECT JURISDICTION OF NOR
CONCLUSIVE EFFECT OF DECISION. — An error of law committed in admitting a joint will to probate
does not affect the jurisdiction of the probate court nor the conclusive effect of its final decision.
2. ID.; ID.; PROBATE DECREE OF JOINT WILL AFFECTS ONLY SHARE OF DECEASED SPOUSE. — A
final probate decree of a joint will of husband and wife affects only the share of the deceased spouse
and cannot include the disposition of the share of the surviving spouse. The validity of said joint will,
in so far as the estate of the latter spouse is concerned, must be, on her death, reexamined and
adjudicated de novo.
3. WILLS; EFFECT OF VALIDITY OF JOINT WILL AS TO SHARE OF WIFE WHO DIES LATER THAN THE
HUSBAND. — Where a husband and wife executed a join will and upon the death of the husband,
said will was admitted to probate by a final decree of the court although erroneous, and the wife dies
later, it is held that said first decree of probate affects only the estate of the husband but cannot
affect the estate of the wife, considering that a joint will is a separate will of each testator, and a
joint will being prohibited by law, the estate of the wife should pass upon her death to her intestate
heirs and not to the testamentary heirs, unless some other valid will is shown to exist in favor of the
latter or unless the testamentary heir is the only heir intestate of said wife.
DECISION
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division (C.A.-
G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819) and
ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp 2-4): jgc:chanrobles.com.ph
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and Gervasia Rebaca, executed a
joint last will and testament in the local dialect whereby they willed that ‘our two parcels of land
acquired during our marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God did not give us any child in
our union, Manuela Rebaca being married to Nicolas Potot’, and that ‘while each of the testator is yet
living, he or she will continue to enjoy the fruits of the two lands aforementioned’, the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio
Lugo, municipality of Borbon, province of Cebu. Bernabe de la Cerna died on August 30, 1939, and
the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there being no opposition,
heard the evidence, and, by Order of October 31, 1939, in Special Proceedings No. 499, ‘declara
legalizado el documento Exhibito A como el testamento y ultima voluntad del finado Bernabe de la
Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y otra testadora al proprio
tiempo segun el Exhibito A de gozar de los frutos de los terrenos descritos en dicho documento; y
habido consideracion de la cuantia de dichos bienes, se derecta la distribucion sumaria de los mismos
en favor de la legataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma
de una fianza en la suma de P500.00 para responder de cualesquiera reclamaciones que se
presentare contra los bienes del finado Bernabe de la Cerna dentro de los años desde esta fecha.’
(Act. Esp. 499, Testamentaria Finado Bernabe de la Cerna). Upon the death of Gervasia Rebaca on
October 14, 1952, another petition for the probate of the same will insofar as Gervasia was
concerned was filed on November 6, 1952, being Special Proceedings No. 1016-R of the same Court
of First Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney, Manuel
Potot to appear, for the hearing of said petition, the case was dismissed on March 30, 1954 (Spec.
Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca)." cralaw virtua1aw library
The Court of First Instance ordered the petition heard and declared the testament null and void, for
being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals
declared that: jgc:chanrobles.com.ph
". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the making of a
will jointly by two or more persons either for their reciprocal benefit or for the benefit of a third
person. However, this form of will has long been sanctioned by use, and the same has continued to
be used; and when, as in the present case, one such joint last will and testament has been admitted
to probate by final order of a Court of competent jurisdiction, there seems to be no alternative
except to give effect to the provisions thereof that are not contrary to law, as was done in the case
of Macrohon v. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to the provisions of
the joint will therein mentioned, saying ‘assuming that the joint will in question is valid’." cralaw virtua1aw library
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament, despite the fact that even then the Civil Code already decreed the invalidity
of joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art.
669, old Civil Code). The error thus committed by the probate court was an error of law, that should
have been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo v. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional
errors, judgment of courts should become final at some definite date fixed by law. Interest rei
publicae ut finis sit litium (Dy Cay v. Crossfield, 38 Phil. 521, and other cases cited in 2 Moran,
Comments on the Rules of Court 1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this count, the dismissal of
their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1939 could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to
the Civil Code, a will could not be probated during the testator’s lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the Court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in Bilbao v. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon v. Saavedra, 51 Phil., 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only repealed
by other subsequent laws, and no usage to the contrary may prevail against their observance (Art. 5,
Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No. 23763-
R is affirmed. No costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.
FIRST DIVISION
[G.R. No. 76714. June 2, 1994.]
SALUD TEODORO VDA.. DE PEREZ, Petitioner, v. HON. ZOTICO A. TOLETE in his capacity as
Presiding Judge, Branch 18, RTC Bulacan, Respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF DECEDENT’S ESTATE; ALLOWANCE OF

WILLS PROBATED ABROAD; EVIDENCE NECESSARY THEREFOR; CASE AT BAR. — The respective
wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon
compliance with the following provisions of the Civil Code of the Philippines. . . . Thus, proof that
both wills conform with the formalities prescribed by New York laws or by Philippine laws is
imperative. The evidence necessary for the reprobate or allowance of wills which have been probated
outside of the Philippines are as follows: (1) the due execution of the will in accordance with the
foreign laws; (2) the testator has his domicile in the foreign country and not in the Philippines; (3)
the will has been admitted to probate in such country; (4) the fact that the foreign tribunal is a
probate court, and (5) the laws of a foreign country on procedure and allowance of wills. Except for
the first and last requirements, the petitioner submitted all the needed evidence.
2. ID.; ID.; ID.; ID.; NOTICE OF TESTATOR’S KNOWN HEIRS, LEGATES, AND DEVISEES, A PRE-
REQUISITE THEREFOR; CASE AT BAR. — This petition cannot be completely resolved without
touching on a very glaring fact — petitioner has always considered herself the sole heir of Dr. Evelyn
Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she
noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition,
she only impleaded respondent Judge, forgetting that a judge whose order is being assailed is merely
a nominal or formal party. The rule that the court having jurisdiction over the reprobate of a will
shall "cause notice thereof to be given as in case of an original will presented for allowance" (Revised
Rules of Court, Rule 27, Section 2) means that with regard to notices, the will probated abroad
should be treated as if it were an "original will" or a will that is presented for probate for the first
time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice
by mail or personally to the "known heirs, legatees, and devisees of the testator resident in the
Philippines" and to the executor, if he is not the petitioner, are required. The brothers and sisters of
Dr. Jose F. Cunanan, contrary to petitioner’s claim are entitled to notices of the time and place for
proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also
cause copies of the notice of the time and place fixed for proving the will to be addressed to the
designated or other known heirs, legatees, and devisees of the testator, . . ." cralaw virtua1aw library
3. ID.; ID.; ID.; JOINT PROBATE OF SEPARATE WILLS PROPER IN CASE AT BAR; REASON. — In the
case at bench, the Cunanan spouses executed separate wills. Since the two wills contain essentially
the same provisions and pertain to property which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court has held a number of times, it will always
strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation. Respondent Judge’s view that the Rules on allowance of wills is couched in
singular terms and therefore should be interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the
rules shall be "liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and proceeding." A literal
application of the Rules should be avoided if they would only result in the delay in the administration
of justice.
DECISION
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order
dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent
Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896
Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and
Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo,
p. 35). In the event he would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his
last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will
states:jgc:chanrobles.com.ph
"If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not
sufficient evidence to determine the order of our deaths, then it shall be presumed that I
predeceased her, and my estate shall be administered and distributed, in all respects, in accordance
with such presumption" (Rollo, p. 41). chanrobles.com:cralaw:red
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament
containing the same provisions as that of the will of her husband. Article VIII of her will estates: jgc:chanrobles.com.ph
"If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not
sufficient evidence to determine the order of our deaths, then it shall be presumed that he
predeceased me, and my estate shall be administered and distributed in all respects, in accordance
with such presumption" (Rollo, p. 31.)
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that
gutted their home. Thereafter, Dr. Rafael Cunanan, Jr. as trustee and substitute executor of the two
wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County of
Onondaga, New York. On April 7, these two wills were admitted to probate and letters testamentary
were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner
herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the reprobate of the two
wills ancillary to the probate proceedings in New York. She also asked that she be appointed the
special administratrix of the estate of the deceased couple consisting primarily of a farm land in San
Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de
la Llana, issued an order, directing the issuance of letters of special administration in favor of
petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and
took her oath as special administratrix.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial Court granted the motion. chanrobles virtual lawlibrary
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that
said company had delivered to petitioner the amount of P49,765.85, representing the proceeds of
the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver
to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family
Savings Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe
F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that before
receiving petitioner’s motion of May 19, 1983, his clients were unaware of the filing of the testate
estate case and therefore, "in the interest of simple fair play," they should be notified of the
proceedings (Records, p. 110). He prayed for deferment of the hearing on the motion of May 19,
1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan
collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had
"no legal or proprietary interests to protect" and "no right to intervene" ; (2) that the wills of Dr.
Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in
accordance with the solemnities and formalities of New York laws, and produced "effects in this
jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code" ; (3) that under Article
VIII of the two wills, it was presumed that the husband predeceased the wife; and (4) that "the
Cunanan collaterals are neither distributees, legatees or beneficiaries, much less, heirs as heirship is
only by institution" under a will or by operation of the law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner’s motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and
surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the
probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe
that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their
right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr.
Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not notified
of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment committed by"
petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G. Cunanan, Jr. had,
by virtue of a verified power of attorney, authorized his father, Dr. Rafael Cunanan, Sr., to be his
attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular administrator "as
practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null
and void; (2) that the appointment of petitioner as special administratrix be set aside; and (3) that
Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the estate of the deceased
spouses. chanrobles.com.ph : virtual law library
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or
accounting of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr.
Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals" ; hence they were complete
strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed"
the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned
not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule
applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved
outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being
given to the executor who, by the same provision, should himself file the necessary ancillary
proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F.
Cunanan, he had willed all his wordly goods to his wife and nothing to his brothers and sisters; and
(5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan
heirs had entered into an agreement in the United States "to settle and divide equally the estates,"
and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause
notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-
185). chanrobles law library
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply
with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She
also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate
Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets
are payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to EPTL4-1.1 subd
[a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were
heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of
Rule 77 of the Rules of Court, the provision of Sections 3, 4 and 5 of Rule 76 on the requirement of
notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their
prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special
administratrix: (3) that she be ordered to submit an inventory of all goods, chattels and monies
which she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr.
be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American
court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July
7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings as
she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York
(Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating that
petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on the
aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of
petitioner of an inventory of the property received by her as special administratrix and declaring all
pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove
the law of New York on procedure and allowance of wills and the court had no way of telling whether
the wills were executed in accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan
spouses and the Philippine law requires three witnesses and that the wills were not signed on each
and every page, a requirement of the Philippine law. chanrobles virtual lawlibrary
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21,
1984, where she had sufficiently proven the applicable laws of New York governing the execution of
last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act
on the other order issued that same day. Contending that the second portion of the second order left
its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said order so that it would conform with the
pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which
the reprobate case was reassigned, issued an order stating that" (W)hen the last will and testament .
. . was denied probate," the case was terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to
turn over to the estate the inventoried property. It considered the proceedings for all intents and
purposes, closed (Records, p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for
the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to act on the denial of
probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985. chanrobles law library
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion
praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to
act as special administratrix, she (the counsel) should be named substitute special administratrix.
She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to
the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the offer and admission to probate of the last
wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985,
alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the
testator domiciled abroad were properly executed, genuine and sufficient to possess real and
personal property; that letters testamentary were issued; and that proceedings were held on a
foreign tribunal and proofs taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree admitting to probate the wills in
question. "However, respondent Judge said that the documents did not establish the law of New York
on the procedure and allowance of wills (Records, p. 381). chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign
law. After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he
conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was
curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to
that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in
his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31,
1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second for reconsideration stating that
she was "ready to submit further evidence on the law obtaining in the State of New York" and
praying that she be granted "the opportunity to present evidence on what the law of the State of
New York has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a
single proceeding "would be a departure from the typical and established mode of probate where one
petition takes care of one will." He pointed out that even in New York "where the wills in question
were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986,
citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than
one suit for a single cause of action. She pointed out that separate proceedings for the wills of the
spouses which contain basically the same provisions as they even named each other as a beneficiary
in their respective wills, would go against "the grain of inexpensive, just and speedy determination of
the proceedings" (Records, pp. 405-407). cralawnad
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing
Benigno v. De La Peña, 57 Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this
pleading had been filed out of time and that the adverse party had not been furnished with a copy
thereof. In her compliance, petitioner stated that she had furnished a copy of the motion to the
counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental
motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if
they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of
April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and
that the separate wills of the Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before respondent Judge
are sufficient to warrant the allowance of the wills:
chanrob1es virtual 1aw library
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate
General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the
facts that Judge Bernard L. Reagan is the Surrogate of the County of Onondaga which is a court of
record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to
grant copy of the respective wills of Evelyn and Jose (Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their
records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of
the exemplified copies of the two wills (Exhs. "F-7" and "F-7"); chanrobles.com : virtual law library
(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh.
"H" and "F");
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant
exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs
duly taken (Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael
G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the
wills to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-
3" and
"I-10");
j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly
taken (Exhs. "H-4" and "I-5");
(k) decrees on probate of the two wills stating that they properly executed, genuine and valid and
that the said instruments were admitted to probate and established as wills valid to pass real and
personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each
other’s signatures in the exemplified copies of the decrees of probate, letters testamentary and
proceedings held in their court (Exhs. "H-6" and "I-6")" (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April
13, 1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in
this country upon compliance with the following provisions of the Civil Code of the Philippines: jgc:chanrobles.com.ph
"Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes." cralaw virtua1aw library
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine
laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of
the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws;
(2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court,
and (5) the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries
on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v.
Hix, 54 Phil. 610 [1930]. Except for the first and last requirements, the petitioner submitted all the
needed evidence. chanrobles virtual lawlibrary
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign
country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine
Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the
pertinent procedural and substantive New York laws but which request respondent Judge just glossed
over. While the probate of a will is a special proceeding wherein courts should relax the rules on
evidence, the goal is to receive the best evidence of which the matter is susceptible before a
purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).
There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judge’s view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the
rules shall be "liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and proceeding." chanrobles lawlibrary : rednad
A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators’ reciprocal benefit
or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench,
the Cunanan spouses executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court has held a number of times, it will always
strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact — petitioner has
always considered herself the sole heir of Dr. Evelyn Perez Cunanan and because she does not
consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing of
the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge, forgetting
that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor
General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to
be given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27,
Section 2) means that with regard to notices, the will probated abroad should be treated as if it were
an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known
heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is
not the petitioner, are required. cralawnad
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner’s claim are entitled to notices
of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court,
the "court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator, . . ." .
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable
time within which to submit evidence needed for the joint probate of the wills of the Cunanan
spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices and
copies of all pleadings pertinent to the probate proceedings.
SO ORDERED.
Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Cruz, J., is on leave.
FIRST DIVISION
[G.R. No. L-37453. May 25, 1979]
RIZALINA GABRIEL GONZALES, Petitioner, v. HONORABLE COURT OF APPEALS and

LUTGARDA SANTIAGO, Respondents.
Francisco D. Rilloraza, Jr., for Petitioners.
Angel A. Sison for Private Respondent.
SYNOPSIS
Isabel Gabriel executed a 5-page will two months prior to her death. The signatures of the deceased
appear at the end of the will and at the left margin of all the pages. The signatures of the three
attesting witnesses appear at the bottom of the attestation clause and on the left margin of all the
other pages. The will named private respondent as universal heir and executor, and gave legacies in
specified amounts to certain persons including the petitioner herein. The petition for the probate of
the will filed by private respondent was opposed by petitioner. The trial court disallowed the will on
the grounds that the will of the deceased was not executed and attested as required by law and that
the document presented for probate is not the purported will allegedly dictated by the deceased,
executed and signed by her, and attested by the three attesting witnesses. Respondent appealed.
The Court of Appeals, upon consideration of the evidence, reversed the trial court’s decision and
allowed the probate of the will.
In this petition for review, petitioner assigned ten errors which are substantially factual in character
and content. Affirming the decision of the Court of Appeals, the Supreme Court held that the factual
finding of the Court of Appeals are not reviewable and are binding upon the Supreme Court.
SYLLABUS
1. APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT REVIEWABLE. — The factual
findings of the Court of Appeals are not reviewable the same being binding and conclusive on the
Supreme Court, particularly where the premises are borne by the record or based upon substantial
evidence. Assignments of errors involving factual issues cannot be ventilated in a review of the
decision of the Court of Appeals because only legal question may be raised.
2. WILLS; ATTESTING WITNESSES; QUALIFICATIONS. — Under the law, there is no mandatory

requirement that the witnesses testify initially at any time during the trial as to his good standing in
the community, his reputation for trustworthiness and reliability, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness
of his mind can be shown by or deduced from his answers to the questions propounded to him, that
his age (18 years or more) is shown from his appearance, testimony, or competently proved
otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write
to the satisfaction of the court, and that he has none of the disqualifications under Article 821 of the
Civil Code.
3. ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. — The instrumental witnesses
are not character witnesses for they merely attest the execution of a will or testament and affirm the
formalities attendant to said execution. The rulings concerning character witnesses in naturalization
proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code.
4. ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. — "Credible witnesses" mean
competent witnesses and not those who testify to facts from or upon hearsay. In the strict sense, the
competency of a person to be an instrumental witness to a will is determined by the statute, that is

Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony
and arises from the belief and conclusion of the court that said witness is telling the truth. It is not
necessary to introduce prior and independent proof of the fact that the witnesses are "credible
witnesses", that is, that they have a good standing in the community and reputed to be trustworthy
and reliable.
5. ID.; NOTARIAL WILLS, NATURE OF. — A notarial will duly acknowledged by the testatrix and the
witnesses before a notary public is a public document executed and attested through the intervention
of the notary public and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To contradict all these,
there must be evidence that is clear, convincing the more than merely preponderant.
6. ID.; ATTESTATION CLAUSE. — The attestation clause which the attesting witness signed is the
best evidence as to date of signing because it preserves in permanent form a recital of all the
material facts attending the execution of the will. This is the very purpose of the attestation clause
which is made for the purpose of preserving in permanent form, a record of the facts attending the
execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved.
7. ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR EXECUTION OF WILL. — The
law does not require a photographer for the execution and attestation of the will. The fact that an
attesting witness mistakenly identified the photographer scarcely detracts from her testimony that
she was present when the will was signed because what matters here is not the photographer but
the photograph taken which clearly portrays the attesting witnesses and her co-witnesses.
8. ID.; ID.; MINOR INCONSISTENCIES. — The discrepancy in the description of the typewriter used
by the notary which he described as "elate" which to him meant big letters which are of the type in
which the will was typewritten but which was identified by an experts as "pica", and the mistake by
the instrumental witness in mentioning the name of the photographer-these are unimportant details
which could have been affected by the lapse of time and the treachery of human memory such as by
themselves would not alter the probative value of the testimonies of the witnesses on the true
execution of the will, for it cannot be expected that the testimony of every person will be identical
and coinciding with each other with regard to details in an incident and that witnesses are not
expected to remember all details.
9. APPEAL; FINDING OF FACT OF TRIAL COURT. — The right of the Court of Appeals to review, alter
and reverse the findings of the trial court where the appellate court, in reviewing the evidence has
found that facts and circumstances of weight and influence have been ignored and overlooked and
the significance of which have been misinterpreted by the trial court, cannot be disputed. Find of
facts made by the trial court, particularly when they are based on conflicting evidence whose
evaluation hinges on questions of credibility of contending witnesses lies particularly within the
province of trial courts and generally, the appellate court should not interfere with the same, unless
the trial court has overlooked and misinterpreted the facts and circumstances established in the
record.
10. ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF APPEALS IS CONCLUSIVE AS
TO FACTS. — Among the exceptions to the rule that the judgment of the Court of Appeals is
conclusive as to the facts and cannot be reviewed by the Supreme Court are: (1) when the
conclusion as a finding grounded entirely on speculations, surmises or conjectures; (2) when the
inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of
facts are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee.
11. WILLS; DUE EXECUTION. — Where the tree instrumental witnesses, who constitute the best
evidence of the will-making, as well as the lawyer who prepared it and who thereafter notarized it
have testified in favor of the will, and where all of them are disinterested witnesses who stand to
received no benefit from the testament, and the signatures of the witnesses and the testatrix have
been identified on the will and there is no claim whatsoever and by any one, much less the petitioner
that they are not genuine, the decision holding that the will was executed in accordance with the
formalities required by law should be affirmed.
DECISION
GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on
May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of
Rizal dated December 15, 1964 and allowed the probate of the last will and testament of the
deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with
the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latter’s
residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have
been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death
of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause
and the acknowledgment of the notary public were written. The signatures of the deceased Isabel
Gabriel appear at the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows: jgc:chanrobles.com.ph
"PATUNAY NG MGA SAKSI
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing
kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at
ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five
Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng
Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming
ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa harap ng
nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at
sa kaliwang panig ng lahat at bawa’t dahon ng testamentong ito." cralaw virtua1aw library
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The will is paged by typewritten words as follows: "Unang Dahon" and underneath" (Page
One)", "Ikalawang Dahon" and underneath" (Page Two)", etc., appearing at the top of each
page. chanrobles.com.ph : virtual law library
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her
estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces,
Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and
Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein
private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal
na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and
named as universal heir and executor, were bequeathed all properties and estate, real or personal,
already acquired, or to be acquired, in her (testatrix’s) name, after satisfying the expenses, debts
and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds: chanrob1es virtual 1aw library
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will, the decedent lacked testamentary
capacity due to old age and sickness; and in the second alternative
4. that the purported will was procured through undue and improper pressure and influence on the
part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo
rendered judgment, the summary and dispositive portions of which read: jgc:chanrobles.com.ph
"Passing in summary upon the grounds advanced by the oppositor, this Court finds: jgc:chanrobles.com.ph
"1. That there is no iota of evidence to support the contention that the purported will of the deceased
was procured through undue and improper pressure and influence on the part of the petitioner, or of
some other person for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age and
sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of
the deceased was not executed and attested as required by law;
"4. That the evidence is likewise conclusive that the document presented for probate, Exhibit ‘F’ is
not the purported will allegedly dictated by the deceased, executed and signed by her, and attested
by her three attesting witnesses on April 15, 1961.
"WHEREFORE, Exhibit ‘F’, the document presented for probate as the last will and testament of the
deceased Isabel Gabriel, is hereby DISALLOWED." cralaw virtua1aw library
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holing that the will in question was signed and executed by
the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by law, 2 hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division,
by Resolution 6 denied the motion for reconsideration stating that: jgc:chanrobles.com.ph
"The oppositor-appellee contends that the preponderance of evidence shows that the supposed last
will and testament of Isabel Gabriel was not executed in accordance with law because the same was
signed on several occasions, that the testatrix did not sign the will in the presence of all the
instrumental witnesses did not sign the will in the presence of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of
record. There is no reason to alter the findings of fact in the decision of this Court sought to be set
aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question
raised being factual and for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11
filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We
resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors: chanrob1es virtual 1aw library
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental
witnesses were credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F."
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court’s finding that it was incredible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not
physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and well-
established rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan v. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) 12 and Tapas v. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent
cases of Baptista v. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig
v. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan v.
CA, this Court said: chanrobles.com:cralaw:red
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of 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. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel it was held that the same principle is applicable, even if the Court of Appeals was
in disagreement with the lower court as to the weight of the evidence with a consequent reversal of
its findings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot
be disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors
involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify
the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to that of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner’s assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding
that the document, Exhibit "F", was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that
the requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted
to probate and that to be a credible witness, there must be evidence on record that the witness has
a good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is further urged that
the term "credible" as used in the Civil Code should receive the same settled and well-known
meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code
provisions on wills with respect to the qualifications of witnesses.
We find no merit to petitioner’s first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a will. These Articles state:jgc:chanrobles.com.ph
"Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in article
805 of this Code.
"Art. 821. The following are disqualified from being witnesses to a will: chanrob1es virtual 1aw library
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers to
the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner’s contention that it must
first be established in the record the good standing of the witness in the community, his reputation
for trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner’s contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills
executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the testator’s name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another. While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix. But the relation of employer and
employee much less the humble social or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo-Pekson and Perez-Nable v. Tanchuco, Et Al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). chanrobles lawlibrary : rednad
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be a witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means "competent." Thus, in the case of Suntay v. Suntay,
95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in
existence at the time of, and not revoked before, the death of the testator, still the provisions of the
lost will must be clearly and distinctly proved by at least two credible witnesses.’Credible witnesses’
mean competent witnesses and not those who testify to facts from or upon hearsay." (Emphasis
supplied).
In Molo Pekson and Perez-Nable v. Tanchuco, Et Al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the
age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a
will, does not disqualify one to be a witness to a will. The main qualification of a witness in the
attestation of wills, if other qualifications as to age, mental capacity and literacy are present, is that
said witness must be credible, that is to say, his testimony may be entitled to credence. There is a
long line of authorities on this point, a few of which we may cite: jgc:chanrobles.com.ph
"A ‘credible witness’ is one who is not disqualified to testify by mental incapacity, crime, or other
cause. Historical Soc. of Dauphin County v. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010."
(Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a ‘credible witness’ to a will means a ‘competent witness.’ Appeal
of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).
"Expression ‘credible witness’ in relation to attestation of wills means ‘competent witness’; that is,
one competent under the law to testify to fact of execution of will. Vernon’s Ann. Civ. St. art. 8283.
Moos v. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)
"The term ‘credible’, used in the statute of wills requiring that a will shall be attested by two credible
witnesses means competent; witnesses who, at the time of attesting the will, are legally competent
to testify, in a court of justice, to the facts attested by subscribing the will, the competency being
determined as of the date of the execution of the will and not of the time it is offered for probate.
Smith v. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"‘Credible witnesses’, as used in the statute relating to wills, means competent witnesses — that is,
such persons as are not legally disqualified from testifying in courts of justice, by reason of mental
incapacity, interest, or the commission of crimes, or other cause excluding them from testifying
generally, or rendering them incompetent in respect of the particular subject matter or in the
particular suit. Hill v. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the
appreciation of his testimony and arises from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo,
No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness is one
thing, and it is another to be a credible witness, so credible that the Court must accept what he says.
Trial courts may allow a person to testify as a witness upon a given matter because he is competent,
but may thereafter decide whether to believe or not to believe his testimony." cralaw virtua1aw library
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to
have the qualifications under Article 820 of the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it
is not mandatory that evidence be first established on record that the witnesses have a good
standing in the community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established otherwise. In other
words, the instrumental witnesses must be competent and their testimonies must be credible before
the court allows the probate of the will they have attested. We, therefore, reject petitioner’s position
that it was fatal for respondent not to have introduced prior and independent proof of the fact that
the witnesses were "credible witnesses", that is, that they have a good standing in the community
and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the
typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion, in holding credible that Isabel Gabriel
could have dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia
was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel
and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave
undue importance to the picture takings as proof that the will was improperly executed, and in
holding that the grave contradictions, evasions and misrepresentations of the witnesses (subscribing
and notary) presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We will consider and discuss hereinafter. We are convinced that the
appellate court’s findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and
bringing all the witnesses without previous appointment for the preparation and execution of the will
and that it was coincidental that Atty. Paraiso was available at the moment impugns the finding of
the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her
companions to his office on April 15, 1961 was unexpected as there was no prior appointment with
him, but he explained that he was available for any business transaction on that day and that Isabel
Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is
amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of
the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he
was going to witness the making of her will, as well as the testimony of Maria Gimpaya that she was
called by her husband Celso Gimpaya to proceed to Isabel Gabriel’s house which was nearby and
from said house, they left in a car to the lawyer’s office, which testimonies are recited in the
respondent Court’s decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya’s
residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria
Gimpaya’s residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961.
The respondent Court correctly observed that there was nothing surprising in these facts and that
the securing of these residence certificates two days and one day, respectively, before the execution
of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the spouses
were earlier notified that they would be witnesses to the execution of Isabel Gabriel’s will.chanrobles law library
We also agree with the respondent Court’s conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia’s house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso’s office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya
and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental
as their gathering was pre-arranged by Isabel Gabriel herself." cralaw virtua1aw library
As to the appellate court’s finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit
"F", which the petitioner assails as contradictory and irreconcilable with the statement of the Court
that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner’s contention. We find no contradiction
for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde v. Azurin, 28 SCRA 407). We find no
such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval because
this conclusion is supported and borne out by the evidence found by the appellate court, thus: "On
page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert.", "date issued" and
"place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued
on February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names, residence
tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3)
witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso’s
even the sale must be made to close relatives; and the seventh was the appointment of the
appellant Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied
by Atty. Paraiso." cralaw virtua1aw library
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F." While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business Isabelita Theater, paying the aparatistas herself until June
4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of
Rizal Province and acted as co-administratrix in the Intestate Estate of her deceased husband Eligio
Naval. The text of the will was in Tagalog, a dialect known and understood by her and in the light of
all the circumstances, We agree with the respondent Court that the testatrix dictated her will without
any note or memorandum, a fact unanimously testified to by the three attesting witnesses and the
notary public himself.
Petitioner’s sixth assignment of error is also benefit of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when
the will was signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya
and Maria Gimpaya. The trial court’s conclusion that Orobia’s admission that she gave piano lessons
to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that day — is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant’s child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal." cralaw virtua1aw library
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact
that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form, a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez v. Leynez, 68 Phil. 745). chanrobles law library : red
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the will was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia’s identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya." Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture-takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of
this occasion. Hence, their identification of some photographs wherein they all appeared along with
Isabel Gabriel and Atty. Paraiso was superfluous." cralaw virtua1aw library
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of
the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was
admittedly no longer present was wholly unnecessary if not pointless. What was important was that
the will was duly executed and witnessed on the first occasion on April 15, 1961," and We agree with
the Court’s rationalization in conformity with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in

their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr. — these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual v. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person will be identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions, they should not agree in
the minor details; hence the contradiction in their testimony." (Lopez v. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed
by the respondent appellate court because the trial court was in a better position to weigh and
evaluate the evidence presented in the course of the trial. As a general rule, petitioner is correct but
it is subject to well-established exceptions. The right of the Court of Appeals to review, alter and
reverse the findings of the trial court where the appellate court, in reviewing the evidence has found
that facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses lies peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court’s unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court’s conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picture-
takings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will-signing
occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde
Orobia to witness the signing of her will, then it becomes the duty of the appellate court to reverse
findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.
: red
chanrobles law library
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law." Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter’s office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso’s claim-which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question." cralaw virtua1aw library
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported
by the evidence on record as stated in the decision under review, thus: "Nothing in the record
supports the trial court’s unbelief that Isabel Gabriel dictated her will without any note or document
to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel
Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to
said lawyer she had no note or document. This fact jibes with the evidence — which the trial court
itself believed was unshaken — that Isabel Gabriel was of sound disposing memory when she
executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel’s wish to be interred according to Catholic rites; the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee;
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of
her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension

of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque v. Buan, Et Al., G.R. No. L-22459, Oct. 31, 1967; Ramos v. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. v. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).
Petitioner’s insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court’s findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesizes the resolutions we have heretofore
made in respect to petitioner’s previous assignments of error and to which We have disagreed and,
therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court’s factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not
present." chanrobles virtual lawlibrary
Petitioner’s exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will-making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses and the
testatrix have been identified on the will and there is no claim whatsoever and by anyone, much less
the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual
and we go back to the rule that the Supreme Court cannot review and revise the findings of facts of
the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with
costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
Endnotes:
1. Penned by then Acting Presiding Justice Juan P. Enriquez, concurred in by Associate Justices Mateo
Canonoy and Ramon C. Fernandez.
2. Annex "B", Petition; Rollo, Vol. I, pp. 81-101.
3. Annexes "H" and "I", Petition; Rollo, Vol. I, pp. 108-154.
4. Annex "K", Petition; Rollo, Vol. I, pp. 167-198.
5. Annexes "L" and "M", Petition; Rollo, Vol. I, pp. 199-248.
6. Penned by Associate Justice Ramon C. Fernandez, and concurred in by Associate Justices Cecilia
Muñoz Palma and Mateo Canonoy.
7. Annex "N", Petition; Rollo, Vol. I, pp. 250-251.
8. Rollo, Vol. II, pp. 270-312.
9. Rollo, Vol. II, p. 317.
10. Rollo, Vol. II, pp. 323-354.
11. Rollo, Vol. II, pp. 363-385.
12. The citation of authorities which begins with Mamuyac v. Abena, 67 Phil. 289 (1939) lists some
35 leading cases up to Ramirez Tel. Corp. v. Bank of America, L-22614, Aug. 29, 1969, 29 SCRA
191.
13. De Garcia v. Court of Appeals, 37 SCRA 129 (1971); Bunyi v. Reyes, 39 SCRA 504 (1971);
Napolis v. Court of Appeals, 43 SCRA 301 (1972); Talosig v. Vda. de Nieba, 43 SCRA 472 (1972);
Evangelista and Co. v. Abad Santos, 51 SCRA 416 (1973); Tiongco v. de la Merced, 58 SCRA 89
(1974).
EN BANC
[G.R. No. L-2538. September 21, 1951.]
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, Petitioner-Appellee, v. LUZ, GLICERIA and CORNELIO MOLO, Oppositors-
Appellants.
Claro M. Recto and Serafin C. Dizon, for Appellants.
Delgado & Flores, for Appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID REVOCATORY CLAUSE. — A

subsequent will containing a clause revoking a previous will, having been disallowed for the reason
that it was not executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annuling the previous will,
inasmuch as said revocatory clause is void (Samson v. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. — Even in the supposition that the
destruction of the original will by the testator could be presumed from the failure of the petitioner to
produce it in court, such destruction cannot have the effect of defeating the prior will where it is
founded on the mistaken belief that the later will has been validly executed and would be given due
effect. The earlier will can still be admitted to probate under the principle of "dependent relative
revocation." The theory on which this principle is predicated is that the testator did not intend to die
intestate. And this intention is clearly manifest where he executed two wills on two different
occasions and instituted his wife as his universal heir.
DECISION
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last
will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The
oppositors- appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz, Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two
wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939, (Exhibit
I). The latter will contains a clause which expressly revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of Rizal a petition,
which was docketed as special proceeding No. 8022, seeking the probate of the will executed by the
deceased on June 20, 1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the will to probate was set
aside and the case was reopened. After hearing, at which both parties presented their evidence, the
court rendered decision denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking
the probate of the will of 1918; (2) that said will has not been executed in the manner required by
law and (3) that the will has been subsequently revoked. But before the second petition could be
heard, the battle for liberation came and the records of the case were destroyed. Consequently, a
petition for reconstitution was filed, but the same was found to be impossible because neither
petitioner nor oppositors could produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as those contained in their former
opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate as already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit: jgc:chanrobles.com.ph
"I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged will of Molo dated 1918.
"II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo’s alleged will of 1918.
"III. The lower court erred in not holding that petitioner herein has come to court with ’unclean
hands’ and as such is not entitled to relief.
"IV. The probate court erred in not holding that Molo’s alleged will of August 17, 1918 was not
executed in the manner required by law.
"V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.
"VI. The lower court erred in not holding that Molo’s will of 1918 was subsequently revoked by the
decedent’s will of 1939." cralaw virtua1aw library
In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June
20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on
August 17, 1918, pointing out certain facts and circumstances which in their opinion indicate that
petitioner connived with witness Canuto Perez in an effort to defeat and frustrate the probate of the
1939 will because of her knowledge that said will was intrinsically defective in that "the one and only
testamentary disposition thereof was a ’disposición captatoria’." These circumstances, counsel for the
appellants contend, constitute a series of steps deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are merely based on presumptions and
conjectures not supported by any proof. For this reason, counsel contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the
will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now for us to determine. It is an incident that comes
within the province of the former case. The failure of petitioner to present the testimony of Artemio
Reyes at the rehearing has also been explained, and it appears that petitioner has failed because his
whereabouts could not be found. Whether this is true or not is not also for this Court to determine. It
is likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we take stock of the developments that had taken place in
these proceedings which show in bold relief the true nature of the conduct, behavior and character of
the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that the will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the strength of this opposition, the court
disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposición captatoria", which
knowledge she may easily acquire through consultation with a lawyer, there was no need for her to
go through the ordeal of filing the petition for the probate of the will. She could accomplish her
desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the
probate of the will executed in 1918. But her conscience was clear and bade her to take the only
proper step possible under the circumstances, which is to institute the necessary proceedings for the
probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected
happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and
over her vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a contingency which petitioner never expected.
Had appellants not filed their opposition to the probate of the will and had they limited their
objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But they failed in their strategy. If said will
was denied probate it is due to their own effort. It is now unfair to impute bad faith to petitioner
simply because she exerted every effort to protect her own interest and prevent the intestacy of the
deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered
guilty of estoppel which would prevent her from seeking the probate of the 1918 will simply because
her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and
1939 wills she was instituted by her husband as his universal heir. Nor can she be charged with bad
faith far having done so because of her desire to prevent the intestacy of her husband. She cannot
be blamed for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in the 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying the prior will of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson
v. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case and
we are indeed impressed by their striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that they contain many points and
circumstances in common. No reason, therefore, is seen why the doctrine laid down in that case
(which we quote hereunder) should not apply and control the present case.
"A subsequent will, containing a clause revoking a previous will, having been disallowed, for the
reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void." (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely represents
the point of view of the minority and should, therefore, be abandoned, more so if we consider the
fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding." (p 63, appellants’
brief).
While there are many cases which uphold the view entertained by counsel for oppositors, and that
view appears to be controlling in the states where the decisions had been promulgated, however, we
are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by
each State on the subject of revocation of wills. But the impression we gathered from a review and
study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good
law. On page 328 of the American Jurisprudence, Vol. 57, which is a revision published in 1948, we
found the following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of prior wills: jgc:chanrobles.com.ph
"SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes which permit
the revocation of a will by another writing provide that to be effective as a revocation, the writing
must be executed with the same formalities which are required to be observed in the execution of a
will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an
unattested nontestamentary writing is not effective to revoke a prior will. It has been held that a
writing fails as a revoking instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it may effect a revocation
by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power
to modify a will by a written instrument subsequently prepared but not executed in the manner
required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is invalid
because of the incapacity of the testator or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is
no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent
will or other writing executed with the same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it cannot be said that there is a writing
which complies with the statute. Moreover, a will or codicil which, on account of the manner in which
it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by
a former will, even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute." (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following: jgc:chanrobles.com.ph
"It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or affect it in any manner."
Mort v. Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d), 498." cralaw virtua1aw library
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason we see no
justification for abandoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a will may be
revoked "by some will, codicil, or other writing executed as provided in case of wills" ; but it cannot
be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as
"other writing executed as provided in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of said clause, there is authority for
holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See
57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the revocatory clause contained in said will, himself deliberately destroyed the original
of the 1918 will, and that for this reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original
of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in
his possession until he executed his second will in 1939. And when the 1939 will was denied probate
on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge
of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his
wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate
copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had been misplaced
or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the conclusion we may
draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be left to mere
inference or conjecture.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any doubt, under this
theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say
that the destruction of the earlier will was but the necessary consequence of the testator’s belief that
the revocatory clause contained in the subsequent will was valid and the latter would be given effect?
If such is the case, then it is our opinion that the earlier will can still be admitted to probate under
the principle of "dependent relative revocation."
"This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for some reason. The doctrine is not limited to the existence of
some other document, however, and has been applied where a will was destroyed as a consequence
of a mistake of law . . . ." (68 C. J. p. 799).
"The rule is established that where the act of destruction is connected with the making of another
will so as fairly to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended
to be made as a substitute is inoperative, the revocation fails and the original will remains in full
force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The failure of the new testamentary
disposition, upon whose validity the revocation depends, is equivalent to the non-fulfillment of a
suspensive condition, and hence prevents the revocation of the original will. But a mere intent to
make at some time a will in place of that destroyed will not render the destruction conditional. It
must appear that the revocation is dependent upon the valid execution of a new will." (1 Alexander,
p. 751; Gardner, p. 233.)
We hold, therefore, that even in the supposition that the destruction of the original will by the
testator could be presumed from the failure of the petitioner to produce it in court, such destruction
cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be given due effect. The
theory on which this principle is predicated is that the testator did not intend to die intestate. And
this intention is clearly manifest when he executed two wills on two different occasions and instituted
his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and instruction of the
testator. The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.
FIRST DIVISION
[G.R. No. L-17714. May 31, 1922. ]
In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, Petitioner-Appellant, v. ANA
DE LEON, Opponent-Appellee.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for Appellant.
Francisco A. Delgado , Powell & Hill and Padilla & Trenas for Appellee.
SYLLABUS
WILLS; REVOCATION; "ANIMO REVOCANDI." — According to the statute governing the subject in
this jurisdiction the destruction animo revocandi of a will constitutes, in itself, a sufficient revocation.
(Sec. 623, Code of Civil Procedure.) The original will herein presented for probate having destroyed
animo revocandi, cannot be declared the will and last testament of the testator.
DECISION
ROMUALDEZ, J. :
The only question raised in this case is whether or not the will executed by Jesus de Leon, now
deceased, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same by alleging that the
testator revoked his will by destroying it, and by executing another will expressly revoking the
former.
We find that the second will Exhibit 1 executed by the deceased is not clothed with all the necessary
requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the destruction of a will with
animo revocandi constitutes, in itself, a sufficient revocation. (Sec 623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly after the execution of
the first will in question, asked that the same be returned to him. The instrument was returned to
the testator who ordered his servant to tear the document. This was done in his presence and before
a nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa
about the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the testator was anxious
to withdraw or change the provisions he had made in his first will. This fact is disclosed by the
testator’s own statement to the witnesses Canto and the Mother Superior of the Hospital where he
was confined.
The Original will herein presented for probate having been destroyed with animo revocandi, cannot
now be probated as the will and last testament of Jesus de Leon.
Judgment is affirmed with costs against the petitioner. So ordered.
Araullo, C.J., Malcolm, Avanceña, Ostrand, and Johns, JJ., concur.
Villamor, J., did not take part.
SECOND DIVISION
[G.R. No. 76464. February 29, 1988.]
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO, Petitioners, v. COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, Respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION;

ANIMUS REVOCANDI, A NECESSARY ELEMENT. — The physical act of destruction of a will, like
burning in this case, does not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator. It is not imperative that the physical
destruction be done by the testator himself. It may be performed by another person but under the
express direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself. In this case, while animus revocandi, or the intention to
revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied by the overt physical act of burning,
tearing, obliterating, or cancelling the will carried out by the testator or by another person in his
presence and under his express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. — For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the presence of a final former judgment;
(2) the former judgment was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and
the second action, identity of parties, of subject matter, and of cause of action. We do not find here
the presence of all the enumerated requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. — There is yet, strictly speaking, no
final judgment rendered insofar as the probate of Adriana Maloto’s will is concerned. The decision of
the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment could not in any manner be construed to be final
with respect to the probate of the subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is understandably so because the trial court,
in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. After
all, an action for probate, as it implies, is founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the assumption that the decedent left no will.
Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an
action for probate. Be that as it may, it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the
late Adriana Maloto’s will. Hence, on these grounds alone, the position of the private respondents on
this score can not be sustained.
DECISION
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly
related to the present one and involving the same parties had already been decided by us in the
past. In G.R. No. L-30479, 1 which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the
petitioners is a separate proceeding for the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No.
2176, for the probate of the disputed will, which was opposed by the private respondents presently,
Panfilo and Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this Court on a petition for review
by certiorari. 2 Acting on the said petition, we set aside the trial court’s order and directed it to
proceed to hear the case on the merits. The trial court, after hearing, found the will to have already
been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court’s decision to the Intermediate Appellate Court which, on June 7, 1985,
affirmed the order. The petitioners’ motion for reconsideration of the adverse decision proved to be
of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners
Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino
Maloto. Believing that the deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt’s estate.
The case was instituted in the then Court of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1,
1964, the parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of extrajudicial
settlement of Adriana’s estate. The agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should have signalled the end of
the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana’s
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-
AN (Testamento)," dated January 3, 1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going
through some materials inside the cabinet drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio
are bequeathed much bigger and more valuable shares in the estate of Adriana than what they
received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among them being the petitioners Asilo de Molo,
the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in
the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the
proceedings therein and for the allowance of the will. When the trial court denied their motion, the
petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the
trial court. 3 As we stated earlier, we dismissed that petition and advised that a separate proceeding
for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised
by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the
document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral,
upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had
been revoked. The respondent court stated that the presence of animus revocandi in the destruction
of the will had, nevertheless, been sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana’s residence, by the testatrix going to the
residence of Atty. Hervas to retrieve a copy of the will left in the latter’s possession, and, her seeking
the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained,
we do not view such facts, even considered collectively, as sufficient bases for the conclusion that
Adriana Maloto’s will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will.
The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases: chanrob1es virtual 1aw library
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned,
torn, cancelled, or obliterated by some other person, without the express direction of the testator,
the will may still be established, and the estate distributed in accordance therewith, if its contents,
and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se
constitute an effective revocation, unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under the express direction and in the presence of the
testator. Of course, it goes without saying that the document destroyed must be the will itself.
In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state
of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary
elements for the effective revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried
out by the testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana’s maid, Guadalupe, was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were
burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor
of the will’s revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana’s will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that" (it) is an important matter of public interest that a purported will
is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations . . ." 4
The private respondents in their bid for the dismissal of the present action for probate instituted by
the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was
brought about by the petitioners’ failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners’)
motion to reopen the case, and their prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a
bar to a subsequent case, the following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, identity of parties, of subject matter, and of cause of action.
5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana
Maloto’s will is concerned. The decision of the trial court in Special Proceeding No. 1736, although
final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could
not in any manner be construed to be final with respect to the probate of the subsequently
discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This
is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to
rule on the probate of the contested will. 6 After all, an action for probate, as it implies, is founded
on the presence of a will and with the objective of proving its due execution and validity, something
which can not be properly done in an intestate settlement of estate proceeding which is predicated
on the assumption that the decedent left no will. Thus, there is likewise no identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would
be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana Maloto’s will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that"
(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and,
furthermore, more valuable properties have been acquired after the execution of the will on January
3, 1940." 7 Suffice it to state here that as these additional matters raised by the private respondents
are extraneous to this special proceeding, they could only be appropriately taken up after the will has
been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June
7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new
one ENTERED for the allowance of Adriana Maloto’s last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera and Paras, JJ., concur.
Padilla, J., no part in the deliberation.
Endnotes:
1. Constancio Malot, Et. Al. v. Hon. Emigdio V. Nietes, etc., Et Al., May 14, 1969.
2. G.R. No. L-32328.
3. G.R. No. L-30479. supra.
4. Vda. de Precilla v. Narciso, No. L-27200, August 18, 1972, 46 SCRA 538, 565-566, quoted in:
Maninang v. Court of Appeals, No. L-57848, June 19, 1982, 114 SCRA 78.
5. Heirs of Matilde Cenizal Arguzon v. Miclat, No. L-61049, April 15, 1985, 135 SCRA 678; Martinez
v. Court of Appeals, No. L-41425, November 11, 1985, 139 SCRA 558.
6. See Circa Nila Development Corporation, et. al. v. Hon. Salvador J. Baylen, etc., Et Al., G.R. Nos.
69757-58, January 29, 1988.
7. Rollo, 75.
SECOND DIVISION
[G.R. No. 26317. January 29, 1927.]
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, Petitioner-Appellant, v.

CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA
MAMUYAC, opponents-appellees.
Nicanor Tavora for Appellant.
Jose Rivera for Appellees.
SYLLABUS
1. WILLS, CANCELLATION OF; PRESUMPTION. — The law does not require any evidence of the
revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to prove
the cancellation or revocation of wills. The fact that such cancellation or revocation has taken place
must either remain unproved or be inferred from evidence showing that after due search the original
will cannot be found. Where a will which cannot be found is shown to have been in the possession of
the testator, when last seen, the presumption is in the absence of other competent evidence, that
the same was cancelled or destroyed. The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be found after his death. It will not be presumed
that such will has been destroyed by any other person without the knowledge or authority of the
testator.
DECISION
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La
Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After
hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day
of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved: jgc:chanrobles.com.ph
"That Exhibit A is a mere carbon copy of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witnesses
Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on
December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where
the house was built, he had to cancel it the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by
the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The
opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920
another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with
him, when cross-examined by attorney for the opponents, testified that the original of Exhibit A
could not be found. For the foregoing consideration and for the reason that the original of Exhibit A
has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that the will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to. be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved or be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.
In view of the fact that the original will of 1919 could not be found after the death of the testator
Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to
the conclusion that the conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proof is upon the proponent clearly to
establish not only its execution but its existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a great majority of instances in
which wills are destroyed for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of
wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities
and requirements of the law, the duplicate may be admitted in evidence when it is made to appear
that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo v.
Casquijo, G.R. No. 26063.) 1
After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Endnotes:
1. Promulgated December 14, 1926, not reported.
FIRST DIVISION
[G.R. No. 48840. December 29, 1943.]
ERNESTO M. GUEVARA, Petitioner-Appellant, v. ROSARIO GUEVARA and her husband

PEDRO BUISON, Respondents-Appellees.
Primicias, Abad, Mencias & Castillo for Appellant.
Pedro C. Quinto for Appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE ON

BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE LAW. — We hold that under
section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and
legatees desire to make an extrajudicial partition of the estate, they must first present that will to
the court for probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they do away with the
presentation of the will to the court for probate, because such suppression of the will is contrary to
law and public policy. The law enjoins the probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be
cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition
of the estate among themselves to the exclusion of others.
2. ID.; ID.; ID. — Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate of the court: first, because
the law expressly provides that "no will shall pass either real or personal estate unless it is proved
and allowed in the proper court" ; and, second, because the probate of a will, which is a proceeding
in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial,
without offending against public policy designed to effectuate the testator’s right to dispose of his
property by will in accordance with law and to protect the rights of the heirs and legatees under the
will thru the means provided by law, among which are the publication and the personal notices to
each and all of said heirs and legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in an ordinary action for reivindicacion or
partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION BETWEEN

LEGATEES. — It results that the interested parties consented to the registration of the land in
question in the name of E. M. G. alone subject to the implied trust on account of which he is under
obligation to deliver and convey to them their corresponding shares after all the debts of the original
owner of said land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner’s title; and in the absence of any
intervening innocent third party, the petitioner may be compelled to fulfill the promise by virtue of
which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the
Court of Appeals, and by the decision of this Court in Severino v. Severino, 44 Phil., 343, and the
cases therein cited.
DECISION
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action
was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what
she claims to be her strict ligitime as an acknowledged natural daughter of the deceased — to wit, a
portion of 423,492 square meters of a large parcel of land described in original certificate of title No.
51691 of the province of Pangasinan, issued in the name of Ernesto M. Guevara — and to order the
latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her. The
defendant answered the complaint contending that whatever right or rights the plaintiff might have
had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with
all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a
gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Pio Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters
and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias
theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-odd
hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same
parcel of land by way of complete settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to
defray his expenses and those of his family up to the time of his death.
The remander of said parcel of land he disposed of in the following manner: jgc:chanrobles.com.ph
"(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada
de ciento veintinueve (129) hectareas setenta (70) areas, y veinticinco (25) centiareas, con todas
sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como
sigue:jgc:chanrobles.com.ph
"A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y
cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el
inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual
extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta
y dos (42) centiareas que le doy en concepto de mejora.
"A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y
setenta y un (71) centiareas, que es la parte restante.
"Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara,
con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo,
que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
conformidad con mis disposiciones arriba consignadas." cralaw virtua1aw library
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale (exhibit 2) in favor
of Ernesto M. Guevara whereby he conveyed to him the southern half of the large parcel of land of
which he had theretofore disposed by the will above mentioned, in consideration of the sum of P1
and other valuable considerations, among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last
illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago
constar tambien que reconozco a mi referido hijo Ernesto M. Guevara como dueño de la mitad norte
de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del
Sr. Rafael T. Puzon a quien habia vendido con anterioridad." cralaw virtua1aw library
On September 27, 1933, final decree of registration was issued in land registration case No. 15174
of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No.
51691 of the same province was issued on October 12 of the same year in favor of Ernesto M.
Guevara over the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of
the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also
withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M.
Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament, however, was never
presented to the court for probate, nor has any administration proceeding ever been instituted for
the settlement of his estate. Whether the various legatees mentioned in the will have received their
respective legacies or have even been given due notice of the execution of said will and of the
dispositions therein made in their favor, does not affirmatively appear from the record of this case.
Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding and to have disposed of
various portions thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father’s last will and testament in
her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the
will. But a little over four years after the testator’s demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore
indicated; and it was only during the trial of this case that she presented the will to the court, not for
the purpose of having it probated but only to prove that the deceased Victorino L. Guevara had
acknowledged her as his natural daughter. Upon that proof of acknowledgment she claimed her
share of the inheritance from him, but on the theory or assumption that he died intestate, because
the will had not been probated, for which reason, she asserted, the betterment therein made by the
testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court
and the Court of Appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure adopted by
the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2
and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M.
Guevara.
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will and
testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case
was decided by the trial court, contains the following pertinent provisions: jgc:chanrobles.com.ph
"Sec. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall pass either the real
or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the
Supreme Court; and the allowance by the court of a will of real and personal estate shall be
conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver. — The person who has the custody of a will shall, within
thirty days after he knows of the death of the testator, deliver the will into the court which has
jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust. — A person named as executor in a
will, shall within thirty days after he knows of the death of the testator, or within thirty days after he
knows that he is named executor, if he obtained such knowledge after knowing of the death of the
testator, present such will to the court which has jurisdiction, unless the will has been otherwise
returned to said court, and shall, within such period, signify to the court his acceptance of the trust,
or make known in writing his refusal to accept it.
"Sec. 628. Penalty. — A person who neglects any of the duties required in the two preceding
sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding
one thousand dollars.
"Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will after the
death of the testator neglects without reasonable cause to deliver the same to the court having
jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by
a warrant issued by the court, and there kept in close confinement until he delivers the will." cralaw virtua1aw library
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect
on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world
and with personal notice to each of the known heirs, legatees, and devisees of the testator (section
630, C. C. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution was of sound and
disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the will be legalized and given effect by means of
a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the
will devises real property, attested copies thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and
section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court
for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy.
To assure and compel the probate of a will, the law punishes a person who neglects his duty to
present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it,
he may be committed to prison and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent
for the following reasons: jgc:chanrobles.com.ph
"The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties, and
that therefore, it is preferable to leave them in the very status which they themselves have chosen,
and to decide their controversy once and for all, since, in a similar case, the Supreme Court applied
that same criterion (Leaño v. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought
to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any
suitable process or mode of procedure may be adopted which appears most consistent to the spirit of
the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with
law."cralaw virtua1aw library
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows: jgc:chanrobles.com.ph
"Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the
parties may, without securing letters of administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee,
he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition
for letters of administration within two years after the death of the decedent." cralaw virtua1aw library
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows: jgc:chanrobles.com.ph
"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the heirs of a
person who died intestate are of lawful age and legal capacity and there are no debts due from the
estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of
them, and not otherwise, apportion and divide the estate among themselves, as they may see fit,
without proceedings in court." cralaw virtua1aw library
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in
section 1 of Rule 74, a summary extrajudicial settlement of a deceased person’s estate, whether he
died testate or intestate, may be made under the conditions specified. Even if we give retroactive
effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it
sanctions the nonpresentation of a will for probate and much less the nullification of such will thru
the failure of its custodian to present it to the court for probate; for such a result is precisely what
Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or
judicial partition of the estate of a decedent "without securing letters of administration." It does not
say that in case the decedent left a will the heirs and legatees may divide the estate among
themselves without the necessity of presenting the will to the court for probate. The petition to
probate a will and the petition to issue letters of administration are two different things, altho both
may be made in the same case. The allowance of a will precedes the issuance of letters testamentary
or of administration (section 4, Rule 78). One can have a will probated without necessarily securing
letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule
76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial
partition of the estate, they must first present that will to the court for probate and divide the estate
in accordance with the will. They may not disregard the provisions of the will unless those provisions
are contrary to law. Neither may they do away with the presentation of the will to the court for
probate, because such suppression of the will is contrary to law and public policy. The law enjoins
the probate of the will and public policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of his property by will may be
rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or
such of them as may have no knowledge of the will, could be cheated of their inheritance thru the
collusion of some of the heirs who might agree to the partition of the estate among themselves to
the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had
received their respective legacies or that they had knowledge of the existence and of the provisions
of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on
account of the failure or refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobody raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with that
will without first securing its allowance or probate by the court, first, because the law expressly
provides that "no will shall pass either real or personal estate unless it is proved and allowed in the
proper court" ; and, second, because the probate of a will, which is a proceeding in rem, cannot be
dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator’s right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an
action for partition, which is one in personam, any more than it could decree the registration under
the Torrens system of the land involved in an ordinary action for reivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does
not sanction the procedure adopted by the Respondent.
The case of Leaño v. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11,
1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902,
and was approved and allowed by the Court on August 16, 1904. In the meantime, and on
November 10, 1902, the heirs went ahead and divided the properties among themselves and some
of them subsequently sold and disposed of their shares to third persons. It does not affirmatively
appear in the decision in that case that the partition made by the heirs was not in accordance with
the will or that they in any way disregarded the will. In closing the case by its order dated
September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leaño,
appealed. In deciding the appeal this Court said: jgc:chanrobles.com.ph
"The principal assignment of error is that the lower court committed an error in deciding that the
heirs and legatees of the estate of Dña. Paulina Ver had voluntarily divided the estate among
themselves." cralaw virtua1aw library
In resolving that question this Court said: jgc:chanrobles.com.ph
"In view of the positive finding of the judge of the lower court that there had been a voluntary
partition of the estate among the heirs and legatees, and in the absence of positive proof to the
contrary, we must conclude that the lower court had some evidence to support its conclusion." cralaw virtua1aw library
Thus it will be seen that as a matter of fact no question of law was raised and decided in that case.
That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure
adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child
of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions
made by him by not presenting the will to the court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and that in the face of express mandatory
provisions of the law requiring her to present the will to the court for probate.
In the subsequent case of Riosa v. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leaño case, by
holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court,
speaking thru Chief Justice Avanceña, held: jgc:chanrobles.com.ph
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section 596 of the Code
of Civil Procedure, authorizing the heirs of a person who died intestate to make extrajudicial partition
of the property of the deceased, without going into any court of justice, makes express reference to
intestate succession, and therefore excludes testate succession.
"2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant case, which is a testate succession,
the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for
the probate of the will and the administration of the estate. When the time came for making the
partition, they submitted to the court the extrajudicial partition previously made by them, which the
court approved. Held: That for the purposes of the reservation and the rights and obligations created
thereby, in connection with the relatives benefited, the property must not be deemed transmitted to
the heirs from the time the extrajudicial partition was made, but from the time said partition was
approved by the court." (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the
court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of
Court, any suitable process or mode of proceeding may be adopted which appears most conformable
to the spirit of the said Rules. That provision is not applicable here for the simple reason that the
procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out
and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate
proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We
see no injustice in requiring the plaintiff not to violate but to comply with the law. On the contrary,
an injustice might be committed against the other heirs and legatees mentioned in the will if the
attempt of the plaintiff to nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she
was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of
Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000
and of imprisonment for contempt of court. As for the defendant, he is not complaining of
inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed
by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to
be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of
intestacy of the decedent notwithstanding the proven existence of a will left by him and solely
because said will has not been probated due to the failure of the plaintiff as custodian thereof to
comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not
take any step to have it presented to the court for probate and did not signify his acceptance of the
trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of
Civil Procedure), because his contention is that said will, insofar as the large parcel of land in
litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of
sale exhibit 2 and the effect of the certificate of title issued to the defendant Ernesto M. Guevara. So
that the parties may not have litigated here in vain insofar as that question is concerned, we deem it
proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara
before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of
and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara’s hacienda of 259-odd
hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar
as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda
by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration
of the latter’s assumption of the obligation to pay all the debts of the deceased, the Court of Appeals
found it to be valid and efficacious because:" (a) it has not been proven that the charges imposed as
a condition is [are] less than the value of the property; and (b) neither has it been proven that the
defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter
of fact the Court of Appeals found: "It appears that the defendant has been paying the debts left by
his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land.
And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the
value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding
share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and
conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court
of Appeals are as follows: jgc:chanrobles.com.ph
"The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of
the land in question, but the Court a quo, after considering the evidence, found it not proven; we
hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L.
Guevara, of the said transactions, which was inserted incidentally in the document of July 12, 1933,
is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to
whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The defendant,
acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in
question, and instead of executing a deed of redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the land in the name of
the defendant, because of the latter’s promise that after paying all the debts of their father, he would
deliver to her and to the widow their corresponding shares. As their father then was still alive, there
was no reason to require the delivery of her share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her brother’s promise. The evidence shows that
such promise was really made. The registration of land under the Torrens system does not have the
effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants,
and other cotenants nor does it change or affect in any other way any other rights and liabilities
created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is
not, then, in estoppel, nor can the doctrine of res judicata be invoked against her claim. Under these
circumstances, she has the right to compel the defendant to deliver her corresponding share in the
estate left by the deceased, Victorino L. Guevara." cralaw virtua1aw library
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the
Court of Appeals. But the findings of fact made by said court are final and not reviewable by us
on certiorari. The Court of Appeals found that the money with which the petitioner repurchased the
northern half of the land in question from Rafael Puzon was not his own but his father’s, it being the
proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also
found that the respondent withdrew her opposition to the registration of the land in the name of the
petitioner upon the latter’s promise that after paying all the debts of their father he would deliver to
her and to the widow their corresponding shares. From these facts, it results that the interested
parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone
subject to the implied trust on account of which he is under obligation to deliver and convey to them
their corresponding shares after all the debts of the original owner of said land had been paid. Such
finding does not constitute a reversal of the decision and decree of registration, which merely
confirmed the petitioner’s title; and in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the
decision of this Court in Severino v. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half
of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to
the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has
alienated any portion thereof, he is under obligation to compensate the estate with an equivalent
portion from the southern half of said land that has not yet been sold. In other words, to the estate
of Victorino L. Guevara still belongs one half of the total area of the land described in said original
certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the
other half having been lawfully acquired by the latter in consideration of his assuming the obligation
to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of
Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter’s
assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the
judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this
action is hereby reversed and set aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with law, without prejudice to such
action as the provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as the last will
and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take
such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator,
taking into consideration the pronouncements made in part II of this opinion. No finding as to costs
in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.
Separate Opinions
BOCOBO, J., concurring: chanrob1es virtual 1aw library
I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by
section 1 of Rule 74 only "if the decedent left no debts." In this case, according to the findings of the
Court of Appeals, Ernesto M. Guevara "has been paying the debts left by his father." It is true that
said Ernesto M. Guevara, in consideration of the conveyance to him of the southern half of the
hacienda, assumed all the debts of the deceased, but this agreement is binding only upon the parties
to the contract but not upon the creditors who did not consent thereto. (Art. 1205, Civil Code.) There
being debts when the father died, section 1 of Rule 74 is not applicable.
MORAN, J., concurring in part and dissenting in part: chanrob1es virtual 1aw library
I would be agreeable to the majority decision but for a statement therein made which in my view
repeals by an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court,
which reads as follows: jgc:chanrobles.com.ph
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. — If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the
parties may, without securing letters of administration, divide the estate among themselves as they
see fit by means of a public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee,
he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the
register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition
for letters of administration within two years after the death of the decedent." cralaw virtua1aw library
The majority holds that under this provision, the heirs and legatees, even if all of them are of age,
and there are no debts to be paid, cannot make an extrajudicial settlement of the estate left by the
decedent without first submitting in court for probate the will left by the testator. This erroneous
interpretation clearly overlooks not only the letter and the spirit but more specially the whole
background of the provision.
It is admitted that the provision has been taken from section 596 of Act No. 190 but with a
modification consisting in that it is made to apply in testate succession. Said section 596 reads: jgc:chanrobles.com.ph
"SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS. — Whenever all

the heirs of a person who died intestate are of lawful age and legal capacity, and there are no debts
due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in
writing by all of them, and not otherwise, apportion and divide the estate among themselves, as they
may see fit, without proceedings in court." cralaw virtua1aw library
It must be observed that the procedure contemplated in this legal provision is completely
extrajudicial and the same procedure intended in section 1 of Rule 74 above quoted which is
captioned "Extrajudicial Settlement by Agreement . . ." Justice Laurel, who was one of the members
of this Court when the new Rules were promulgated, in commenting upon Rule 74, said: jgc:chanrobles.com.ph
"RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The corresponding provisions in the Code of Civil
Procedure are sections 596-598. There is substantial analogy between the provisions of the Code of
Civil Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be
extrajudicial settlement whether a person died testate or intestate, while under section 596 of the
Code of Civil Procedure extrajudicial settlement can be had only when a person died intestate. (2)
Under Rule 74, section 1, extrajudicial settlement may take place ’if the decedent left no debts,’
while under section 596 of the Code of Civil Procedure it may take place ’when there are no debts
due from the estate, or all the debts have been paid.’ (3) Under section 596 of the Code of Civil
Procedure, extrajudicial settlement may take place when all the heirs are of lawful age and legal
capacity, while under section 1 of Rule 74 it may take place when ’the heirs and legatees are all of
legal age, or the minors are represented by their judicial guardians’. (4) Unlike the Code of Civil
Procedure, section 596, section 1 of Rule 74 requires the extrajudicial agreement to be filed in the
office of the register of deeds; provides that should the heirs disagree, ’they may do so in an
ordinary action of partition’, and that ’if there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the register of deeds’, and that
’it shall be presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.’" [(Italics mine); Laurel, Procedural
Reform in the Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate
without judicial proceeding. In other words, even in cases of testate succession, the heirs and
legatees, when they are all of age or are represented by their judicial guardians, and there are no
debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute
among themselves the estate left by the decedent and need not go to court even for the probate of
the will. Unless legal terms mean nothing, this is clearly what is meant in said provision by the words
"extrajudicial settlement" and by the clause." . . the parties may, without securing letters of
administration, divide the estate among themselves as they see fit." . . When judicial administration
is made unnecessary by the provision, the inevitable implication is that the probate of the will is also
unnecessary, the probate having no other object than administration for purposes of distribution
according to the provisions of the will. That is why section 4 of Rule 78 provides: jgc:chanrobles.com.ph
"ESTATE, HOW ADMINISTERED. — When a will is thus allowed, the court shall grant letters
testamentary, or letters of administration with the will annexed, and such letters testamentary or of
administration shall extend to all the estate of the testator in the Philippines. Such estate, after the
payment of just debts and expenses of administration, shall be disposed of according to such will, so
far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by
law in cases of estates in the Philippines belonging to persons who are inhabitants of another state or
country." cralaw virtua1aw library
If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I
repeat, the probate of the will being purposeless, becomes unnecessary. If the parties have already
divided the estate in accordance with the will, the probate of the will is a useless ceremony. If they
have divided the estate in a different manner, the probate of the will is worse than useless; it is
ridiculous. The following words of this Court in a previous case may well be here reiterated: jgc:chanrobles.com.ph
"These sections provide for the voluntary division of the whole property of the decedent without
proceedings in court. The provisions which they contain are extremely important. The wisdom which
underlies them is apparent. It is the undisputed policy of every people which maintains the principle
of private ownership of property that he who owns a thing shall not be deprived of its possession or
use except for the most urgent and imperative reasons and then only so long as is necessary to
make the rights which underlie those reasons effective. It is a principle of universal acceptance which
declares that one has the instant right to occupy and use that which he owns, and it is only in the
presence of reasons of the strongest and most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which gave birth to this stern and imperious
principle is the same force which destroyed the feudal despotism and created the democracy of
private owners.
"These provisions should, therefore, be given the most liberal construction so that the intent of the
framers may be fully carried out. They should not be straitened or narrowed but should rather be
given that wideness and fullness of application without which they cannot produce their most
beneficial effects.
". . . The purpose which underlies them, as we have already intimated, is to put into one’s hands the
property which belongs to him not only at the earliest possible moment but also with the least
possible expense. By permitting the partition and division without proceedings in court no time is lost
and substantially all expense and waste are saved. This is as it should be. The State fails wretchedly
in its duty to its citizens if the machinery furnished by it for the division and distribution of the
property of a decedent is so cumbersome, unwieldly and expensive that a considerable portion of the
estate is absorbed in the process of such division.." . . (McMicking v. Sy Conbieng, 21 Phil., 211;
219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed with by
agreement of all the parties interested and the estate left by the decedent settled extrajudicially
among all the heirs and legatees, as is now provided in section 1 of Rule 74. It is well recognized
that the allowance of a will gives conclusiveness merely to its due execution, but not to the intrinsic
validity of its provisions which are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree, without going to court, that the will of
the decedent is in form valid (this being the only point to be litigated in a probate proceeding), and
that they will divide the inheritance in the manner acceptable to them? The procedure would not be
against public policy or the law placing in the hands of the courts the probate of wills, because what
the courts are enjoined to do for the benefit of the parties, the latter have already done. As long as
the extrajudicial partition of the estate does not affect the rights of third parties and is not rendered
invalid by any provision of the substantive law, no possible objection can be raised thereto. On
practical considerations, it would be useless to force the parties, at their expense, to go thru the
formality of probating a will and dividing the estate in accordance therewith, because as soon as the
routine is over, they are of course free to make such transfers to one another as will be necessary to
effect a partition which they would have made if they were allowed to settle the estate
extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a
will to the competent court and punishing omissions to do so, but said provisions are calculated to
protect the interests of the persons entitled to share in the inheritance. The latter may waive such
benefit. This waiver cannot be said to be a withdrawal or diminution of the jurisdiction of the court,
since it only implies a desire of the parties not to litigate. The fear that "absent legatees and
devisees, or such of them as may have no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others", is wisely provided against in the requirement of the
Rule that all the parties interested and all the beneficiaries under the will should be parties to the
extrajudicial settlement. The participation of all the interested parties excludes the probability of
fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not without adequate
remedy for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions. In Leaño v.
Leaño (25 Phil., 180), all the heirs and legatees have made an extrajudicial partition of the estate
left by the decedent and then filed the will in court which was probated. Nine years of costly probate
proceedings have followed after which the extrajudicial partition was made known to court. Such
extrajudicial partition was objected to by one party upon the ground that it was not in conformity
with the provisions of the will. But the trial Court held: jgc:chanrobles.com.ph
"Naturally the partition made by the heirs voluntarily and spontaneously must produce and has
produced a legal status, which cannot be annulled merely for the caprice of one person. And it
cannot be said that, because the partition was not made in accordance with the will, if such be the
case, the latter has to be annulled, for by voluntarily and spontaneously concurring therein they
implicitly renounced the effects of said will, of which they were aware." (See p. 183).
On appeal, this Court affirmed the ruling with the following pronouncement: jgc:chanrobles.com.ph
"In view of the positive finding of the judge of the lower court that there had been a voluntary
partition of the estate among the heirs and legatees and in the absence of positive proof to the
contrary, we must conclude that the lower court had some evidence to support his conclusion. If the
heirs and legatees had voluntarily divided the estate among themselves, then their division is
conclusive, unless and until it is shown that there were debts existing against the estate which had
not been paid. No claim is made whatever by third parties nor objections of any character are made
by others than the heirs against said partition. We see no reason why the heirs and legatees should
not be bound by their voluntary acts." (Pages 183-184).
This case furnishes precisely a valuable experience as to the practical wisdom underlying the
procedure established in section 1 of Rule 74. After the will was probated and after nine years of
costly administration proceedings, nothing — absolutely nothing — was accomplished by the court
except to make the belated pronouncement that the extrajudicial partition made by the parties prior
to the institution of the proceedings was proper and binding upon them. Thus, the whole proceedings
for nine years have proved no more than a futile chronicle of wasted time and money for the parties
and the court. This disgraceful experience could not and did not pass unnoticed to the members of
this Court who drafted the new Rules of Court. The solemn admonition made by this Court in a
previous case (McMicking v. Sy Conbieng, supra) when it said that "the State fails wretchedly in its
duty to its citizens if the machinery furnished by it for the division and distribution of the property of
a decedent is so cumbersome, unwieldly and expensive that a considerable portion of the estate is
absorbed in the process of such division", rang with re-echoing insistence and was heeded to when
the new Rules of Court was drafted and promulgated. The fundamental policy pervading the whole
system of procedure adopted in said Rules is speed, economy and justice. Thus, features of
procedure were done away with when, without them, the same purpose may be achieved. The result
is brevity and simplicity of procedure with such guarantees as are necessary to assure due process.
And to remedy such evil as is disclosed in the Leaño case, a completely extrajudicial settlement is
allowed even in testate succession with the probate of the will dispensed with, when the heirs and
legatees who are all of age or represented by their judicial guardians, so agree, and there are no
debts to be paid. Thus, the scope of section 596 of Act No. 190 was amplified and with it the ruling
of this Court in Riosa v. Rocha (48 Phil. 737). The procedure is in consonance with the almost
unanimous weight of authority in other jurisdictions: jgc:chanrobles.com.ph
"The complaint, to which a demurrer was sustained, shows that all the persons interested in a
decedent’s estate, as widow, heirs, distributees, legatees, or devisees, including the person
appointed executrix by the will, and the husbands of femes covert, (all being adults), by agreement
divided among themselves all the property of the estate according to the direction of the will, paid off
all debts against the estate, and delivered the note described to the plaintiff, as a part of her share;
and all this was done without probate of the will, or administration of the estate. The effect of such a
division was to invest the plaintiff with an equitable title to the note. In the absence of the will, the
decisions of this court, heretofore made, would meet every argument in favor of an opposite
conclusion. (Anderson v. Anderson, 37 Ala., 683; Marshall v. Crow, 29 Ala., 278; Vanderveer v.
Alston, 16 Ala., 494; Miller v. Eatman, 11 Ala., 609). Does the presence of an unprobated will, as a
feature of this case, take it out of the principle of those decisions? We can perceive no sufficient
reason why it should. All the parties interested, or to be affected, may as well by agreement divide
property, where there is a will, without employing the agency of courts, as in case of intestacy.
Parties, competent to act, ought to do that, without the agency of courts, which the courts would
ultimately accomplish. To deny them the privilege of so doing, would manifest a judicial abhorrence
of harmony. By the probate of the will, the claims of heirs and distributees, and of the widow, would
have been subordinated to the directions of the will. This has been accomplished by agreement.
There being no debts, the executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of competent parties. All the
ends and objects of judicial proceedings have been accomplished, by agreement of the parties; and
that agreement must be effective." (Carter v. Owens, 41 Ala., 215; 216-217).
"The absence of sound objection on this ground to a contract having for its sole purpose the
disposition of property in a manner different from that proposed by a testator, even where the
contract contemplates the rejection of the will when offered for probate or its setting aside when
admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest,
may be freely conceded. As has often been substantially said, the public generally has no interest in
the matter of the probate of a will; and only those interested in the estate under the will or otherwise
are affected by such a contract. If they all agree upon some course to be followed, and their contract
is otherwise free from contemplated fraud or violation of any law, no one else has any such interest
as warrants complaint. Such was the character of contract involved in Spangenberg v. Spangenberg
(App.) , 126 Pac., 379, especially relied on by plaintiff here, where the contract purported to affect
only such property of the deceased as should in fact be received by the parties thereto. In Estate of
Garcelon, 104 Cal., 570; 38 Pac., 414; 32 L. R. A., 595; 43 Am. St. Rep., 134, another case much
relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was said
that the contract was one that concerned the parties alone, and one that did not appear to be
against public policy." (Gugolz v. Gehrkens, 130 Pac. Rep., 8, 10; 164 Cal., 596).
"The question of public policy is introduced. The disposition of one’s property after death is controlled
by statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a
next of kin has such interest as the statute declares. In case there is a will, he has an interest which
gives him a standing and right to contest the will. This right is his alone; in it the public has no
interest; he may refrain from exercising it, or he may dispose of it as he wishes, by release or
assignment or settlement, and the law of public policy is not of offended." (In re Cook’s Will, 217 N.
Y. S., 176, 180-181).
"Agreement. — ’It has been definitely decided by the courts of this state, and of many other states,
that the beneficiaries under a will have a right to agree among themselves upon any distribution they
see proper of the property bequeathed to them . . . That holding is based upon the proposition that
the property is theirs. No one else is interested in its disposition, and they may, with propriety, make
any distribution of it that suits them, so long as they do not invade the rights of other parties or
infringe some rule of public policy’." (Fore v. McFadden, 276 N. W., 327; 329).
"The first assignment of error presented by appellants complains of the action of the court in
sustaining exceptions to averments asking the enforcement of the agreement that the will should not
be probated, and that the estate should be divided among the parties as they would be entitled as
heirs at law of the deceased, the proponent of the will surrendering thereby his rights as principal
legatee. This assignment must be sustained. It cannot be seen that the agreement is contrary to
public policy. Parties may make any contract with reference to their property rights that is not illegal,
may adjust by compromise their differences and disputes concerning the same and, as they bind
themselves, so shall they be bound. It is difficult to understand why this cannot be effected by an
agreement not to probate a will, or how it interferes with public policy. The power to litigate and to
establish a right by appeal to the courts is as much the subject of contract as any other right in
property. Such adjustments by contract are favored by the law and the courts, and are not deemed
to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On the
contrary, public policy favors them.
"Appellants have cited a case in point, — the case of Phillips v. Phillips, 8 Watts, 197, in which it is
held competent for devisees and legatees to bind themselves by a written or parol agreement to
destroy a will before probate, and that a party to the agreement would be estopped from claiming
any interest under the will. The court says: ’It cannot admit of doubt that before probate the parties
in interest under a will would have the right to set aside a will, and such an act would be favored,
when the object was to avert a family controversy’. The agreement that the will should not be
probated, and that the parties would take the property as heirs at law of the deceased, destroyed the
legal effect of the will; and it could not thereafter have legal existence in conferring rights upon the
legatees." (Stringfellow v. Early, 40 SW. 871, 873-874; 15 Tex. Civ. App., 597).
"The contention that the complaint does not state a cause of action, because the contract sued on is
against public policy, and therefore void, is made here for the first time. It is to the interest of the
public generally that the right to make contract should not be unduly restricted, and no agreement
will be pronounced void, as being against public policy, unless it clearly contravenes that which has
been declared by statutory enactment or by judicial decisions to be public policy, or unless the
agreement manifestly tends in some way to injure the public. Whether or not a contract in any given
case is contrary to public policy is a question of law, to be determined from the circumstances of
each particular case. Smith v. Du Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber v.
Shay, 56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St. Rep., 743; Pierce v. Randolph, 12
Tex., 290; Printing Numerical Registering Co. v. Sampson, 19 L. R. Eq. Cas., 465.
"The contract in controversy is in effect but an agreement whereby the parties thereto, ’because of
their love and affection for one another’ and ’being desirous of avoiding litigation over the estate’ of
their father ’in case of his death,’ agreed to ignore his will in the event that he made one, and then
share his estate equally as if he had died intestate. In other words, the contract was but an
agreement of heirs apparent not to contest the will of an ancestor. There is nothing to be found in
our code or statutory law prohibiting the making and enforcement of such a contract, and it has been
held in this state that a contract, made after the death of the deceased, not to contest his will, is
purely personal to the parties making it, that it is not against public policy, and that, when fairly
made, it will be enforced." (Spangenberg v. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App.,
439).
"Probate Dispensed With. — Probate of a will may be dispened with by an agreement between the
persons interested; or it may be dispensed with where the testator, before his death, conveyed to
the devisees all the property which he had devised to them, or where the will makes no other
disposition of the testator’s property than the law would have done had he died intestate, and the
rights sought to be established are admitted by all concerned. But where the language of the will
expressly invokes the jurisdiction of the probate court the fact that no administration is necessary
does not affect the power of the court to probate the will." (68 C. J., pp. 877-878).
"Agreement between Persons Interested: a. Requisites and Validity. (1) In General. — It has been
held that, since the nature of a probate proceeding is one in rem, the parties cannot submit a
controversy arising therein to arbitration. The law, however, favors the settlement, in good faith, of
will contests, by a so-called ’family settlement’, although it changes the mode of disposition of the
estate; and, therefore, subject to the limitation that a contestant cannot compromise anything
beyond his own personal interest in the contest, persons, such as devisees, legatee, heirs, or next of
kin, having interests in the will or estate, sufficient to entitle them to oppose probate or contest the
will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid and
binding on all the parties thereto, whereby they waive probate of the will and bind themselves to
abide by its provisions, or whereby they agree that the will is not to be probated or is to be
superseded or destroyed; or whereby any controversy relative to the probate or contest of the will is
compromised or settled, and a contest is avoided, whether or not there were, in fact, valid grounds
for the contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the
will, must be entered into by all the persons affected thereby, and all the parties thereto must be
competent to make the agreement, and either they or their representative must fully execute it, and,
under some statutes, it must be properly approved by the court." ([Italics supplied] 68 C. J., pp.
909-910).
"As to Probate. — The operation and effect of the agreement may be not to supersede the provisions
of the will, but to carry out its provisions without a probate, and under such an agreement the
parties are precluded from denying the probate, or insisting on the invalidating of the will for want of
probate. So, also, a person who agrees not to contest the will is precluded from opposing probate; or
the probate of a will may be dispensed with, and the persons interested in the estate under the will
given at least an equitable interest in the property, where they, being under no disability, divide the
estate, pursuant to an agreement among themselves. Where the effect of the agreement of all
interested parties is to repudiate or renounce the will, it will not be probated, especially where the
agreement expressly so provides; but it has been held that, where the executor, defending a torn
will, agrees, for a consideration, not to probate it, the court should not refuse probate without
notifying other beneficiaries and requiring testimony as to the tearing of the will by the testator.
Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries,
and the parties to such agreement are not prevented thereby from taking under the will which is
probated by another interested person." ([Italics supplied] 68 C. J., pp. 914-915).
"Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the
purpose of saving a family controversy and for the purpose of dividing the estate, enter into a
compromise and settlement agreement, under the terms of which the entire estate is to be, and has
in part been, divided, and agree that the instrument shall not be offered for probate, it is sufficient to
prevent a probate." (Brown v. Burk, 26 NW [2d ed. ], 415).
"Validity of Agreements to Dispense with Probate or to Modify or Set Aside Will. — Though in some
jurisdictions an agreement to dispense with the probate of a will has been declared to be against
public policy and void, in a majority of the decisions on the point it has been held that all the persons
interested in a decedent’s estate may by agreement divide the estate among themselves, without
probating such decedent’s will or administering the estate, and the validity of a contract having for
its sole purpose the disposition of property in a manner different from that proposed by a testator,
even where the contract contemplates the rejection of the will when offered for probate or its setting
aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in
interest, would seem to be freely conceded. Thus it has been held that all the parties in interest may
agree to eliminate from a will a clause providing for survivorship among them. But an agreement to
resist the probate of a will and procure it to be set aside so as to cut off the interest of one who is
not a party to such agreement is against public policy. Nor does the right of all the parties in interest
to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a
testator as he deems proper for the protection of his beneficiaries. A contract between the next of
kin of a decedent, that they will each have a certain portion of the estate, does not amount to an
agreement to divide the estate without probating the will." (28 R. C. L., pp. 357-358).
The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-
358) is from the Supreme Court of only one State — that of Wisconsin, in re Will of Dardis (135 Wis.,
457; 115 NW., 332). All the other States held the contrary doctrine that is now embodied in section
1 of Rule 74. Commenting upon the Wisconsin rule, the Editor of the L. R. A. says the following: jgc:chanrobles.com.ph
"No case has been found other than Re Dardis wherein any court passed upon the validity of a
stipulation to secure the denial to probate of a will theretofore offered for probate, on the ground
that the testator was mentally incompetent to make a will at the time of its execution. The decision
of the court is based upon the doctrine therein enunciated, that proceedings to probate a will are
proceedings in rem, which public interest demands should be pursued to a final adjudication,
regardless of the wishes of the interested parties. In this connection and with reference to this
broader question, it is of interest to note that courts of other jurisdictions, although generally
recognizing that proceedings to probate a will are proceedings in rem, hold that the proceeding is
inter partes to the extent that all the parties in interest may control the probate proceedings, even to
the extent of doing away with the probate." (23 L. R. A. [N.S. ], p. 783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has
solemnly given a form of a rule — section 1, Rule 74 — to what was merely the consensus of judicial
opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by
another rule.
The majority, however, expresses fear that abuses may easily be committed under the Rules. Such
fears have always been the bugbear set up against all task of procedural reforms. To be sure, there
has never been any provision of law that is not liable to abuses. If by a mere possibility of abuse we
are to disregard clear provisions of a procedural law, the result would be not only the abrogation of
all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil
under a specific situation therein contemplated, it must be deemed good even if other situations may
be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no
concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a manner
which shall not defeat the intention underlying it. Laws are promulgated to be obeyed and when they
are abused there are the courts to check up the abuse. Courts must deal with the specific
circumstances of each case and construe the provisions in such a manner as to make it impregnable
if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why
laws are more often worded so broadly as to lay merely general principles — a skeleton — the flesh
to be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to a proper
disposition of the case. Judicial experience has shown that such advanced opinions may not
infrequently place the court in an embarrassing position when a proper case with the proper factual
environment is properly presented with all its angles before the court. Jurisprudence must be
carefully progressive and not impetuously aggressive. For instance, the majority, impressed by the
awful circumstances of the present case, has found it dangerous to hold that the probate of the will
may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to
generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs
and legatees who are all of age have agreed to dispense with the probate of a will and have actually
made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they
have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and
compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may not be
dispensed with under Rule 74, section 1, could have decided this case by stating that said provision
is not applicable, its requirements not being present. And I would be wholly agreeable to this
conclusion because the beneficiaries under the will do not appear to have made an extrajudicial
settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the
natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded either
on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid
and binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will
in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently,
Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its
contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not
invoke its provisions.
Endnotes:
1. Justice Hontiveros of the Court of Appeals took part in this case by special designation.
FIRST DIVISION
[G.R. NO. 168156 : December 6, 2006]
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.

Llonillo, Petitioners, v. VICENTA UMENGAN, Respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the Petition for Review on Certiorari filed by the Heirs of Rosendo Lasam,
represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the
Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The
assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao
City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer file by the said
heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch
III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment
of respondent Vicenta Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying
the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows'
The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the
eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of
1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot
No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots are registered in
the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on

June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in
favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument entitled
Partition Agreement and acknowledged before a notary public on December 28, 1979, it was agreed
that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of
Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to
the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado
(deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay remarried
Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second
husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who was
then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of Isabel
Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot,
having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased
Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily
allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband
allegedly promised that they would vacate the subject lot upon demand. However, despite written
notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to
vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam
were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the
complaint. She countered that when Isabel Cuntapay passed away, the subject lot was inherited by
her six children by her first and second marriages through intestate succession. Each of the six
children allegedly had a pro indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the
respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were
allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page No.
36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband
as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41,
Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon
donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed
of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book
of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and
Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the complaint for
ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of
Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered last will and
testament (entitled Testamento Abierto) purportedly executed by Isabel Cuntapay where she
bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to
the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don Luis
Alonso; on the property which is my share stands a house of light materials where I presently reside;
this 1/5th (one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam
and also the aforementioned house of light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the
last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on intestate
succession and legal conveyances. Citing jurisprudence3 and Article 10804 of the Civil Code, the
MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the
testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet
probated as required by law; nonetheless, the institution of a probate proceeding was not barred by
prescription.
With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam,
the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share
therein. Consequently, they could not convey to Vicenta Umengan what they did not own. On the
issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs
of Rosendo Lasam as it found that Vicenta Umengan's possession thereof was by mere tolerance.
The dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the
EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos
representing the monthly rental of the land from August 2000 to the time this case shall have been
terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney's fees plus cost of
this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the
MTCC that the testamentary disposition of the property of Isabel Cuntapay should be respected, and
that the heirs of Rosendo Lasam have a better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no
jurisdiction over the case as it involved the recovery of ownership of the subject lot, not merely
recovery of possession or unlawful detainer. She also assailed the RTC's and the MTCC's holding that
the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengan's muniments of
title and, consequently, the heirs of Rosendo Lasam have a better right to the subject lot than
Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the
RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject matter as
it found that the allegations in the complaint made out a case for unlawful detainer. The heirs of
Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta Umengan to vacate
and surrender possession of the subject lot. The CA also rejected the contention of the heirs of
Rosendo Lasam that the issue of ownership of the subject lot had already been settled in another
case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial
court's order dismissing the said case was not a "judgment on the merits" as to constitute res
judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the
purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a better right
to the subject lot over Vicenta Umengan. The CA explained that the said last will and testament did
not comply with the formal requirements of the law on wills.6
Specifically, the CA found that the pages of the purported last will and testament were not numbered
in accordance with the law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as
testator and the witnesses to the will did not affix their respective signatures on the second page
thereof. The said instrument was likewise not acknowledged before a notary public by the testator
and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel
Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only
in 1997, a date - May 19, 1956 - appears on the last page of the purported will. The CA opined that
if this was the date of execution, then the will was obviously spurious. On the other hand, if this was
the date of its discovery, then the CA expressed bafflement as to why the heirs of Rosendo Lasam,
through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel
Cuntapay died intestate.
It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo
Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her possession
of the subject lot. The CA noted that she has also possessed the subject property since 1955. Such
prior possession, the CA held, gave Vicente Umengan the right to remain in the subject lot until a
person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better
right. The CA stressed that the ruling on the issue of physical possession does not affect the title to
the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of
ownership. The parties are not precluded from filing the appropriate action to directly contest the
ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the
RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby REVERSED and SET
ASIDE. Private respondents' complaint for unlawful detainer against petitioner is dismissed for lack of
merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the
CA in its Resolution dated May 17, 2005.

The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed
reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC, and
dismissing their complaint for unlawful detainer against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over
the subject matter of the complaint as the allegations therein make out a case for unlawful detainer
but, on the other hand, proceeded to discuss the validity of the last will and testament of Isabel
Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the
heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto. It
was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null and
void for its non-compliance with the formal requisites of the law on wills. The said matter cannot be
resolved in an unlawful detainer case, which only involves the issue of material or physical
possession of the disputed property. In any case, they maintain that the said will complied with the
formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondent's favor the deed of sale and
deed of donation covering portions of the subject lot, when these documents had already been
passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it dismissed the
respondent's complaint for partition of the subject lot. The said order allegedly constituted res
judicata and may no longer be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among
the parties is entitled to the physical or material possession of the property in dispute. On this point,
the MTCC held (and the same was affirmed by the RTC) that petitioners have a better right since the
"merely tolerated" possession of the respondent had already expired upon the petitioners' formal
demand on her to vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan,
full brother of the respondent, attesting that the latter's possession of the subject lot was by mere
tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay.
According to petitioners, respondent's predecessors-in-interest from whom she derived her claim
over the subject lot by donation and sale could not have conveyed portions thereof to her, as she
had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the
names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright respondent's
petition filed therewith for failure to comply with the technical requirements of the Rules of Court.
Specifically, the petition was not allegedly properly verified, lacked statement of material dates and
written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical requirements for filing
an appeal are not sacrosanct. It has been held that while the requirements for perfecting an appeal
must be strictly followed as they are considered indispensable interdictions against needless delays
and for orderly discharge of judicial business, the law does admit of exceptions when warranted by
circumstances.8 In the present case, the CA cannot be faulted in choosing to overlook the technical
defects of respondent's appeal. After all, technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the parties. 9
The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the physical or material
possession of the property involved, independent of any claim of ownership by any of the party
litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of
determining who is entitled to possession de facto.10
In the present case, petitioners base their claim of right to possession on the theory that their father,
Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered last will and
testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly holding the
subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners' formal demand on her to
vacate the same, respondent's right to possess it has expired.

On the other hand, respondent hinges her claim of possession on the legal conveyances made to her
by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and Abdon.
These conveyances were made through the sale and donation by the said siblings of their respective
portions in the subject lot to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and respondent, the latter
has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had
allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that petitioners
have a better right to the possession of the subject lot because, following the law on succession, it
should be respected and should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel
Cuntapay could not properly be relied upon to establish petitioners' right to possess the subject lot
because, without having been probated, the said last will and testament could not be the source of
any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance
of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after
the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the
allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or
after his death, shall be conclusive as to its due execution.
In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory; at any time
prior to the testator's death, it may be changed or revoked; and until admitted to probate, it has no
effect whatever and no right can be claimed thereunder, the law being quite explicit: 'No will shall
pass either real or personal property unless it is proved and allowed in accordance with the Rules of
Court.' "12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force
or validity it must be probated. To probate a will means to prove before some officer or tribunal,
vested by law with authority for that purpose, that the instrument offered to be proved is the last will
and testament of the deceased person whose testamentary act it is alleged to be, and that it has
been executed, attested and published as required by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the validity of the will."13 Moreover, the presentation
of the will for probate is mandatory and is a matter of public policy. 14
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a
better right to possess the subject lot on the basis of the purported last will and testament of Isabel
Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel Cuntapay's last
will and testament, which has not been probated, has no effect whatever and petitioners cannot
claim any right thereunder.
Hence, the CA correctly held that, as against petitioners' claim, respondent has shown a better right
of possession over the subject lot as evidenced by the deeds of conveyances executed in her favor
by the children of Isabel Cuntapay by her first marriage.
Contrary to the claim of petitioners, the dismissal of respondent's action for partition in Civil Case
No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res judicata on the

matter of the validity of the said conveyances or even as to the issue of the ownership of the subject
lot. The order dismissing respondent's action for partition in Civil Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants' [referring to the petitioners herein]
affirmative defenses consisting inter alia in the discovery of a last will and testament of Isabel
Cuntapay, the original owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been
allowed in probate, hence, there is an imperative need to petition the court for the allowance of said
will to determine once and for all the proper legitimes of legatees and devisees before any partition
of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over any other action
especially where the will evinces the intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can
order the filing of a petition for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as it is hereby
DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements must be present: (1) finality of the former
judgment; (2) the court which rendered it had jurisdiction over the subject matter and the parties;
(3) it must be a judgment on the merits; and (4) there must be, between the first and second
actions, identity of parties, subject matter and causes of action.16 The third requisite, i.e., that the
former judgment must be a judgment on the merits, is not present between the action for partition
and the complaint a quo for unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917
reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for partition because
of the discovery of the alleged last will and testament of Isabel Cuntapay. The court did not declare
respondents [referring to the petitioners herein] the owners of the disputed property. It simply
ordered them to petition the court for the allowance of the will to determine the proper legitimes of
the heirs prior to any partition. Instead of filing the appropriate petition for the probate of Isabel
Cuntapay's will, the respondents filed the present complaint for unlawful detainer. Viewed from this
perspective, we have no doubt that the court's Orders cited by the respondents are not "judgments
on the merits" that would result in the application of the principle of res judicata. Where the trial
court merely refrained from proceeding with the case and granted the motion to dismiss with some
clarification without conducting a trial on the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her
first marriage could not have conveyed portions of the subject lot to respondent, as she had claimed,
because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro
and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition
Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The
latter died leaving her six children by both marriages as heirs. Considering that her purported last
will and testament has, as yet, no force and effect for not having been probated, her six children are
deemed to be co-owners of the subject lot having their respective pro indiviso shares. The
conveyances made by the children of Isabel Cuntapay by her first marriage of their respective pro
indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive
right of heirs to dispose of their idealshare in the co-heirship and/co-ownership among the heirs. The
Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever right,
interest, or participation he may have in the property under administration. This is a matter which
comes under the jurisdiction of the probate court.

The right of an heir to dispose of the decedent's property, even if the same is under administration,
is based on the Civil Code provision stating that the possession of hereditary property is deemed
transmitted to the heir without interruption and from the moment of the death of the decedent, in
case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of
the decedent is, before its partition, owned in common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is
mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person
in its enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in the division upon the termination of the co-
ownership. In other words, the law does not prohibit a co-owner from selling, alienating or
mortgaging his ideal share in the property held in common.
As early as 1942, this Court has recognized said right of an heir to dispose of property under
administration. In the case of Teves de Jakosalem v. Rafols, et al., it was said that the sale made by
an heir of his share in an inheritance, subject to the result of the pending administration, in no wise,
stands in the way of such administration. The Court then relied on the provision of the old Civil Code,
Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the
new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death of a
person, each of his heirs 'becomes the undivided owner of the whole estate left with respect to the
part or portion which might be adjudicated to him, a community of ownership being thus formed
among the co-owners of the estate which remains undivided.' "18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel
Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares are
concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of
donation and deed of sale presented by respondent, coupled with the fact that she has been in
possession of the subject lot since 1955, establish that respondent has a better right to possess the
same as against petitioners whose claim is largely based on Isabel Cuntapay's last will and testament
which, to date, has not been probated; hence, has no force and effect and under which no right can
be claimed by petitioners. Significantly, the probative value of the other evidence relied upon by
petitioners to support their claim, which was the affidavit of Heliodoro Turingan, was not passed
upon by the MTCC and the RTC. Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CA's admonition that '
x x x our ruling on the issue of physical possession does not affect title to the property nor constitute
a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not
precluded from filing the appropriate action directly contesting the ownership of or the title to the
property.19
Likewise, it is therefore in this context that the CA's finding on the validity of Isabel Cuntapay's last
will and testament must be considered. Such is merely a provisional ruling thereon for the sole
purpose of determining who is entitled to possession de facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February
16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032
are AFFIRMED.
SO ORDERED.
Panganiban, C.J. (Chairperson), Ynares-Santiago, Austria-Martinez, and Chico-Nazario, JJ.,

concur.
Endnotes:

1
Penned by Associate Justice Arturo D. Brion, with Associate Justices Eugenio S. Labitoria (retired)
and Eliezer R. De Los Santos, concurring.
2
As quoted in the MTCC Decision dated November 21, 2001, p. 1; rollo, p. 79.
3
Citing Austria v. Reyes, L-23079, February 27, 1970, 31 SCRA 754; Rodriguez v. CA, 137 Phil. 371
(1969).
4
The provision reads in part:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such
partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.
xxx
5
Rollo, p. 81.
6
The pertinent provisions read:
ART. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation 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.
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.
7
Rollo, pp. 61-62.
8
Orozco v. Court of Appeals, Fifth Division, G.R. No. 155207, April 29, 2005, 457 SCRA 700.
9
Id. at p. 709.
10
Keppel Bank Philippines, Inc. v. Adao, G.R. No. 158227, October 19, 2005, 473 SCRA 372.
11
335 Phil. 1107 (1997).
12
Id. at 1118.
13
TOLENTINO, III CIVIL CODE OF THE PHILIPPINES, p. 151.
14
See, for example, Guevara v. Guevara, 74 Phil. 479 (1943); Baluyut v. Paño, 163 Phil. 81 (1976)
and; Roberts v. Leonidas, 214 Phil. 30 (1984).
15
Rollo, pp. 123-124. Citations omitted.
16
Perez v. Court of Appeals, G.R. No. 157616, July 22, 2005, 464 SCRA 89.

17
Rollo, p. 57. Emphasis supplied.
18
Acebedo v. Abesamis, G.R. No. 102380, January 18, 1993, 217 SCRA 186. Citations omitted.
19
Rollo, p. 61 citing Boy v. Court of Appeals, G.R. No. 125088, April 14, 2004, 427 SCRA 196.

FIRST DIVISION
[G.R. No. L-62952. October 9, 1985.]
SOFIA J. NEPOMUCENO, Petitioner, v. THE HONORABLE COURT OF APPEALS, RUFINA

GOMEZ, OSCAR JUGO ANG CARMELITA JUGO, Respondents.
DECISION
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now Intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated
August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution
dated December 28, 1982 denying petitioner’s motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by
him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leaño, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to
a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since
1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as
husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein,
Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator
devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita
his entire estate and the free portion thereof to herein petitioner. The Will reads in part:chanrobles.com:cralaw:red
"Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez,
and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be
legally and properly entitled to inherit from me; that while I have been estranged from my above-
named wife for so many years, I cannot deny that I was legally married to her or that we have been
separated up to the present for reasons and justifications known fully well by them;
"Art IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom
I declare and avow to be entitled to may love and affection, for all the things which she has done for
me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent,
did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of
the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage;"
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of
the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on
the part of the petitioner; that at the time of the execution of the Will, the testator was already very
sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in

integrity and thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will’s admission to probate will be an idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the Will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028
of the Civil Code of the Philippines. The dispositive portion of the decision reads: jgc:chanrobles.com.ph
"WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the
devise in favor of the appellant which is declared null and void. The properties so devised are instead
passed on in intestacy to the appellant in equal shares, without pronouncement as to costs." cralaw virtua1aw library
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical
Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision
be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy
to the appellees in equal shares, without pronouncement as to costs." The motion was granted by
the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982. chanrobles virtual lawlibrary
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the provisions of paragraph 1 of
Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only
be made by the proper court in a separate action brought by the legal wife for the specific purpose of
obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person
with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, Et. Al. (17
SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between him and
the petitioner put in issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the
petitioner null and void.
The general rule is that in probate proceedings, the court’s area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: chanrobles law library
x x x

". . . It is elementary that a probate decree finally and definitively settles all questions concerning
capacity of the testator and the proper execution and witnessing of his last Will and testament,
irrespective of whether its provisions are valid and enforceable or otherwise." (Fernandez v.
Dimagiba, 21 SCRA 428).
"The petition below being for the probate of a Will, the court’s area of inquiry is limited to the
extrinsic validity thereof. The testator’s testamentary capacity and the compliance with the formal
requisites or solemnities prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of
any devise or legacy is premature.
x x x
"True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one
thing; the validity of the testamentary provisions is another. The first decides the execution of the
document and the testamentary capacity of the testator; the second relates to descent and
distribution." (Sumilang v. Ramagosa 21 SCRA 1369).
x x x
"To establish conclusively as against everyone, and once for all, the facts that a will was executed
with the formalities required by law and that the testator was in a condition to make a will, is the
only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing more. In them the court has
no power to pass upon the validity of any provisions made in the will. It can not decide, for example,
that a certain legacy is void and another one valid. . . ." (Castañeda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr. v. Martinez (64 SCRA
452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated: jgc:chanrobles.com.ph
"The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will,
before ruling on its allowance or formal validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the will, which are of dubious
legality, and because of the motion to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner’s authorization), the trial court acted correctly in
passing upon the will’s intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA
449. Compare with Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho v.
Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties
are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the question of whether or not the probate court
correctly denied the probate of Martin Jugo’s last Will and Testament, it ruled: jgc:chanrobles.com.ph
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals’ decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.
We sustain the respondent court’s jurisdiction. As stated in Nuguid v. Nuguid, (supra): jgc:chanrobles.com.ph
"We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result. waste of time,
effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, Et. Al. v. Jugo, Et Al., 77 Phil. 517, 522). After all, there
exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court does
not ordinarily look into the intrinsic validity of its provisions. chanrobles virtual lawlibrary
Article 739 of the Civil Code provides: jgc:chanrobles.com.ph
"The following donations shall be void: chanrob1es virtual 1aw library
(1) Those made between persons who were guilty of adultery or concubinage at the time of the
donation;
(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
"In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse
of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of
evidence in the same action.
Article 1028 of the Civil Code provides: jgc:chanrobles.com.ph
"The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions." cralaw virtua1aw library
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator’s death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned previous marriage." cralaw virtua1aw library
There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the
woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator. chanrobles.com : virtual law library
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents: jgc:chanrobles.com.ph
"First. The last will and testament itself expressly admits indubitably on its face the meretricious

relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary evidence.
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to
petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and
wife, as already married was an important and specific issue brought by the parties before the trial
court, and passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to
present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of
August 1, 1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of petitioner on
the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious
relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the
inception of the case.
"Confronted by the situation, the trial court had to make a ruling on the question.
"When the court a quo held that the testator Martin Jugo and petitioner ‘were deemed guilty of
adultery or concubinage’, it was a finding that petitioner was not the innocent woman she pretended
to be."cralaw virtua1aw library
x x x
"3’ If a review of the evidence must be made nonetheless, then private respondents respectfully offer
the following analysis: jgc:chanrobles.com.ph
"FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac
where neither she nor the testator ever resided. If there was nothing to hide from, why the
concealment? Of course, it maybe argued that the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it should be remembered that Rufina Gomez was
already in the family way at that time and it would seem that the parents of Martin Jugo were not in
favor of the marriage so much so that an action in court was brought concerning the marriage.
(Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30).
"SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single.
That would be in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923
(Exh. 3). Petitioner married the testator only on December 5, 1952. There was a space of about 30
years in-between. During those 30 years, could it be believed that she did not even wonder why
Martin Jugo did not marry her nor contact her anymore after November, 1923 — facts that should
impel her to ask her groom before she married him in secrecy, especially so when she was already
about 50 years old at the time of marriage.
"THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she knew that the man she had openly lived for 22 years as man and wife was a
married man with already two children.
"FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible
that she would not have asked Martin Jugo whether or not they were ms illegitimate or legitimate
children and by whom? That is un-Filipino.
"FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it
possible that she would not have known that the mother of private respondent Oscar Jugo and

Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin
Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few
meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least,
inherently improbable, for they are against the experience in common life and the ordinary instincts
and promptings of human nature that a woman would not bother at all to ask the man she was going
to marry whether or not he was already married to another, knowing that her groom had children. It
would be a story that would strain human credulity to the limit if petitioner did not know that Martin
Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased during their younger
years."cralaw virtua1aw library
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage. chanrobles.com : virtual law library
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela Fuente and Patajo, JJ., concur.

SECOND DIVISION
[G.R. No. L-29300. June 21, 1978.]
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the

deceased Pedro Gallanosa being substituted by his legal heirs, namely, his above-named
widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren
named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the
late SIKATUNA GALLANOSA. son of Pedro D.H. GALLONOSA, Petitioners, v. HON. UBALDO
Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and
FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ,
JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. HITOSIS, DEBORAH R.
HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA,
LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented
by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA
HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-
FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES
FRANCHE, RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-
BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-
BANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA
HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO BANEGA,
FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS,
PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS,
MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO
GAMBOA, Respondents.
Haile Frivaldo, for Petitioners.
Joaquin R. Hitosis for Private Respondents.
SYNOPSIS
After the will of Florentino Hitosis was duly probated and the project of partition among his
testamentary heirs was approved by the court, the legal heirs who appealed neither from the decree
of probate nor from the order of partition and distribution instituted an action for the recovery of 61
parcels of land adjudicated under the probated will. The action was dismissed on ground of res
judicata. Again, the legal heirs did not appeal, but in 1967, fifteen years after the said dismissal and
twenty-eight years after the probate of the will, they filed another action in the same court for the
"annulment" of the will and for the recovery of the 61 parcels of land. Respondent judge dismissed
the action but thereafter granted plaintiffs’ motion for reconsideration and set aside the dismissed
order.
On petition for certiorari, the Supreme Court held that the trial court committed grave abuse of
discretion in reconsidering its order of dismissal and ignoring the decrees of probate and distribution
as well as the order of dismissal of the civil case for recovery of the 61 parcels of land, which are the
same as the instant case, and which therefore constitute bars by former judgment.
Impugned order set aside and order of dismissal affirmed
SYLLABUS
1. CERTIORARI; GRAVE ABUSE OF DISCRETION. — It is grave abuse of discretion for a court not to
dismiss an action for the "annulment" of a probated will and for recovery of parcels already
adjudicated under said will, filed 28 years after the decrees of probate and distribution had become

final, and 15 years after an order of the same court dismissing a civil action for the recovery of the
same parcels of land now again being sought to be recovered.
2. SPECIAL PROCEEDINGS; PROBATE OF WILLS MANDATORY. — In order that a will may take effect,
it has to be probated, legalized or allowed in the proper testamentary proceeding. The probate of the
will is mandatory.
3. ID.; ID.; TESTAMENTARY PROCEEDING DIFFERENT FROM ORDINARY ACTION; NO ACTION FOR
"ANNULMENT" OF WILL. — The testamentary proceeding is a special proceeding for the settlement of
the testator’s estate. A special proceeding is distinct and different from an ordinary action. Our
procedural law does not sanction an action for the "annulment" of a will.
4. JUDGMENTS; EFFECT THEREOF; PROBATE OF WILLS; RES JUDICATA. — A final decree in respect
to the probate of a will is conclusive as to the due execution or formal validity of the will, meaning
that the testator was of sound and disposing mind at the time when he executed the will and was not
acting under duress, menace, fraud, or undue influence; that the will was signed by him in the
presence of the required number of witnesses; and that the will is genuine and is not a forgery.
These facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for
the forgery of the will.
5. SPECIAL PROCEEDINGS; TESTATE PROCEEDINGS ARE IN REM; DECREE OF ADJUDICATION. — A

decree of adjudication rendered by the trial court in the testate proceeding for the settlement of the
estate of having been rendered in a proceeding in rem, is binding upon the whole world.
6. JUDGMENTS IN PERSONAM; EFFECT THEREOF; RES JUDICATA. — An order of dismissal rendered

by a court of competent jurisdiction after an adjudication on the merits is a judgment in personam
which constitute res judicata.
7. JUDGMENTS; FINALITY IS FUNDAMENTAL. — It is a fundamental concept in the organization of

every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of
courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum.
The very object for which the courts were constituted was to put an end to controversies.
8. FINAL JUDGMENTS; GROUNDS FOR RELIEF. — After the period for seeking relief from a final order
or judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be set
aside only on the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for
annulling the judgment is four years from the discovery of the fraud.
9. CONTRACTS; VOID CONTRACTS; DECLARATION OF NULLITY IMPRESCRIPTIBLE; ARTICLE 1410,

NEW CIVIL CODE APPLICABLE TO WILLS. — The rule in article 1410 of the Civil Code, that "the
action of defense for the declaration of the inexistence of a contract does not prescribe", applies to
wills.
DECISION
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders
of respondent Judge dated May 3 and June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the
Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an
estimated value of P50,000, and claims for damages exceeding one million pesos. The undisputed
facts are as follows: chanrob1es virtual 1aw library
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years
old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother,

Leon Hitosis. His other brothers, named Juan Tito (Juancito), Leoncio (Aloncio) and Apolonio and only
sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published In that will.
Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas,
and, should Tecla predecease him, as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla’s son by her first
marriage, grew up under the care of Florentino: he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman)
Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator’s legal heirs, namely, his
surviving brother, Leon, and his nephews and nieces. After a hearing, wherein the oppositors did not
present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October
27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically
found that the testator executed his last will "gozando de buena salud y facultades mentales y no
obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo Fortajada,
submitted a project of partition covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle and several pieces of personal property which were distributed in accordance
with Florentino’s will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of
partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the
heirs’ possession of their respective shares. The testator’s legal heirs did not appeal from the decree
of probate and from the order of partition and distribution.
5. On February 20, 1952, Leon Hitosis and the heirs of Florentino’s deceased brothers and sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the
recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those lands en concepto de dueño
and that Gallanosa entered those lands in 1951 and asserted ownership over the lands. They prayed
that they be declared the owners of the lands and that they be restored to the possession thereof.
They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action and on the ground of
bar by the prior judgment in the probate proceeding, Judge Anatolio C. Mañalac dismissed the
complaint on the ground of res judicata in his order of August 14, 1952 wherein he said: jgc:chanrobles.com.ph
"It also appears that the plaintiffs and or their predecessors-in-interest had intervened in the testate
proceedings in Civil Case No. 3171 of this Court for the purpose of contesting the probate of the will
of (the) late Florentino Hitosis; and had their opposition prospered and the will denied of probate,
the proceedings would have been converted into one of intestacy (Art. 960 Civil Code) and the
settlement of the estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession . . ., in which case the said plaintiffs, as the
nearest of kin or legal heirs of said Florentino Hitosis, would have succeeded to the ownership and
possession of the 61 parcels of land in question forming part of his estate (art. 1003, Civil Code).
"However, the decision of the Court was adverse to them, when it dismissed their opposition and
ordered the probate of his will. From this decision (Annex K). legalizing the said will, the oppositors
did not file any appeal within the period fixed by law, despite the fact that they were duly notified
thereof, so that the said decision had become final and it now constitutes a bar to any action that the
plaintiffs may institute for the purpose of seeking a redetermination of their right to inherit the
properties of the late Florentino Hitosis.
"In other words, the said decision of this Court in Civil Case (Special Proceeding) No. 3171, in which
the herein plaintiffs or their predecessors-in-interest had intervened as parties oppositors,
constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have
no legal rights to succeed to any of the properties of the late Florentino Hitosis; consequently, their
present claim to the ownership and possession of the 61 parcels of land in question is without any
legal merit or basis." cralaw virtua1aw library

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of the will, and their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 and twenty-eight years after the probate of the will, another action in the same
court against the Gallanosa spouses and Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis and for the recovery of the same sixty-one parcels of land. They prayed for the
appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud and deceit,
caused the execution and simulation of the document purporting to be the last will and testament of
Florentino Hitosis. While in their 1952 complaint the same plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which
was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 and Civil Case No.
696 were decided and which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge
granted it and set aside the order of dismissal. He denied defendants’ motion for the reconsideration
of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate and the 1952 order of dismissal in Civil Case No.
696 and that it acted with grave abuse of discretion in not dismissing private respondents’ 1967
complaint. cralawnad
The issue is whether, under the facts set forth above, the private respondents have a cause of action
for the "annulment" of the will of Florentino Hitosis and for the recovery of the sixty-one parcels of
land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal and in ignoring the 1939 testamentary case and the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law and procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless and unwarranted.
What the plaintiffs seek is the "annulment" of a last will and testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation
of the complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint and from defendants’ motion to dismiss that
plaintiffs’ 1967 action is barred by res judicata a double-barrelled defense, and by prescription,
acquisitive and extinctive, or by what are known in the jus civile and the jus gentium as usucapio,
longi temporis possesio and praescriptio (See Ramos v. Ramos, L-19872, December 3, 1974, 61
SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code, sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara v. Guevara, 74 Phil. 479; Guevara v. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator’s estate. A
special proceeding is distinct and different from an ordinary action (Secs. 1 and 2, Rule 2 and sec. 1,
Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs’ 1967 complaint, is
a two-pronged defense because (1) the 1939 and 1943 decrees of probate and distribution in Special
Proceeding No. 3171 and (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court
constitute bars by former judgment. Rule 39 of the Rules of Court provides: jgc:chanrobles.com.ph

"SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by a court or
judge of the Philippines, having jurisdiction to pronounce the judgment or order, may be as
follows:jgc:chanrobles.com.ph
"(a) In case of a judgment or order against a specific thing, or in respect to the probate of a will or
the administration of the estate of a deceased person, or in respect to the personal political, or legal
condition or status of a particular person or his relationship to another, the judgment or order is
conclusive upon the title to the thing, the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or intestate;
"(b) In other cases the judgment or order is, with respect to the matter directly adjudged or as to
any other matter that could have been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement of the action or special
proceeding, litigating of the same thing and under the same title and in the same capacity;
"(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or necessary thereto." cralaw virtua1aw library
The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190; sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound and disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine and is not a
forgery. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in
a criminal action for the forgery of the will. (3 Moran’s Comments on the Rules of Court, 1970
Edition, p. 395; Manahan v. Manahan, 58 Phil, 448). chanrobles virtual lawlibrary
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot
be raised anymore (Santos v. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria v. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after
the decree of probate had become final. That case is summarized as follows: jgc:chanrobles.com.ph
"Wills; Probate; Alleged Fraudulent Will; Appeal. — V. died. His will was admitted to probate without
objection. No appeal was taken from said order. It was admitted that due and legal notice had been
given to all parties. Fifteen months after the date of said order, a motion was presented in the lower
court to have said will declared null and void, for the reason that fraud had been practiced upon the
deceased in the making of his will.
"Held: That under section 625 of Act No. 190, the only time given parties who are displeased with
the order admitting to probate a will, for an appeal is the time given for appeals in ordinary actions;
but without deciding whether or not an order admitting a will to probate will be opened for fraud,
after the time allowed for an appeal has expired, when no appeal is taken from an order probating a
will, the heirs can not, in subsequent litigation in the same proceedings, raise questions relating to
its due execution. The probate of a will is conclusive as to its due execution and as to the
testamentary capacity of the testator." (See Austria v. Heirs of Ventenilla, 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the above quoted section 49(a), binding upon the whole world (Manalo
v. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna v. Potot, 120 Phil. 1361,
1364; McMaster v. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to
private respondents complaint. The 1952 order of dismissal rendered by Judge Mañalac in Civil Case
No. 696, a judgment in personam, was an adjudication on the merits (Sec. 4, Rule 30, old Rules of
Court). It constitutes a bar by former judgment under the aforequoted section 49(b). (Anticamara v.
Ong, L-29689, April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding and the proceeding in Civil Case No. 696. Obviously, they realized that the
final adjudications in those cases have the binding force of res judicata and that there is no ground,
nor is it timely, to ask for the nullification of the final orders and judgments in those two cases.chanroblesvirtualawlibrary
It is a fundamental concept in the organization of every jural system, a principle of public policy,
that, at the risk of occasional errors, judgments of courts should become final at some definite date
fixed by law. Interest rei publicae ut finis sit litum. The very object for which the courts were
constituted was to put an end to controversies. (Dy Cay v. Crossfield and O’ Brien, 38 Phil. 521;
Peñalosa v. Tuason, 22 Phil. 303; De la Cerna v. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four years from the
discovery of the fraud (2 Moran’s Comments on the Rules of Court, 1970 Edition, pp. 245-246
Mauricio v. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs’
counsel, held that the action for the recovery of the lands had not prescribed because the rule in
article 1410 of the Civil Code, that "the action of defense for the declaration of the inexistence of a
contract does not prescribe", applies to wills.
That ruling is a glaring error Article 1410 cannot possibly apply to last wills and testaments. The trial
court and plaintiffs’ counsel relied upon the case of Dingle v. Guillermo, 48 O.G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton v. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to void contracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains to
verify the misrepresentation of plaintiffs’ counsel that the Dingle case was decided by this Court. An
elementary knowledge of civil law could have alerted the trial court to the egregious error of
plaintiffs’ counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court’s orders of May 3 and June 17, 1968 are reversed and set aside and its
order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.
Fernando, (Chairman), Barredo, Antonio and Santos, JJ., concur.
Concepcion Jr., J., is on leave.

EN BANC
[G.R. No. 38050. September 22, 1933.]
In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, Petitioner-Appellee, v.

ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo, for Appellant.
Heraclio H. del Pilar, for Appellee.
SYLLABUS
1. WILL; PROBATE OF WILL. — The appellant was not entitled to notification of the order admitting
the will to probate, inasmuch as she was not an interested party, not having filed an opposition to
the petition for the probate thereof. Her allegation that she had the status of an heir, being the
decedent’s sister, did not confer upon her the right to be notified in view of the fact that the testatrix
died leaving a will in which the appellant has not been instituted heir. Furthermore, not being a
forced heir, she did not acquire any successional right.
2. ID.; ID.; AUTHENTICATION AND PROBATE. — In the phraseology of the procedural law there is no
essential difference between the authentication of a will and the probate thereof. The words
authentication and probate are synomymous in this case. All the law requires is that the competent
court declare that in the execution of the will the essential external formalities have been complied
with and that, in view thereof, the document, as a will, is valid and effective in the eyes of the law.
3. ID.; ID.; CONCLUSIVE CHARACTER OF THE DECREE OF PROBATE. — The decree admitting a will
to probate is conclusive with respect to the due execution thereof and it cannot be impugned on any
of the grounds authorized by law, except that of a fraud, in any separate or independent action or
proceeding.
4. ID.; ID.; PROCEEDINGS "IN REM." — The proceedings followed in a testamentary case being in
rem, the decree admitting the will to probate was effective and conclusive against the appellant, in
accordance with section 306 of the Code of Civil Procedure.
5. ID.; ID.; INTERLOCUTORY ORDER. — The appellant could not appeal from the trial court’s order
denying her motion for reconsideration and a new trial in view of the fact that said order was
interlocutory in character.
DECISION
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the Court of
First Instance Manahan, from the order of the Court of First Instance of Bulacan dated July 1, 1932,
in the matter of the will of the deceased Donata Manahan, special proceedings No. 4162, denying her
motion for reconsideration and new trial filed on May 11, 1932.
The facts in the case are as follows: chanrob1es virtual 1aw library
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the probate of
the will of the deceased Donata Manahan, who died in Bulacan, Province of Bulacan, on August 3,
1930. The petitioner herein, niece of the testatrix, was named the executrix in said will. The court

set the date for the hearing and the necessary notice required by law was accordingly published. On
the day of the hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for. The will was
probated on September 22, 1930. The trial court appointed the herein petitioner executrix with a
bond of P1,000, and likewise appointed the committee on claims and appraisal, whereupon the
testamentary proceedings followed the usual course. One year and seven months later, that is, on
May 11, 1932, to be exact, the appellant herein filed a motion for reconsideration and a new trial,
praying that the order admitting the will to probate be vacated and the authenticated will declared
null and void ab initio. The appellee herein, naturally filed her opposition to the petition and, after
the corresponding hearing thereof, the trial court entered its order of denial on July 1, 1932.
Engracia Manahan, under the pretext of appealing from this last order, likewise appealed from the
judgment admitting the will to probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by the trial court.
Instead of discussing them one by one, we believe that, essentially, her claim narrows down to the
following: (1) That she was an interested party in the testamentary proceedings and, as such, was
entitled to and should have been notified of the probate of the will; (2) that the court, in its order of
September 22, 1930, did not really probate the will limited itself to decreeing its authentication; and
(3) that the will is null and void ab initio on the ground that the external formalities prescribed by the
Code of Civil Procedure have not been complied with in the execution thereof.
The appellant’s first contention is obviously unfounded and untenable. She was not entitled to
notification of the probate of the will and neither had she the right to expect it, inasmuch as she was
not an interested party, not having filed an opposition to the petition for the probate thereof. Her
allegation that she had the status of an heir, being the deceased’s sister, did not confer on her the
right to be notified on the ground that the testatrix died leaving a will in which the appellant has not
been instituted heir. Furthermore, not being a forced heir, she did not acquire any successional
right.
The second contention is puerile. The court really decreed the authentication and probate of the will
in question, which is the only pronouncement required of the trial court by the law in order that the
will may be considered valid and duly executed in accordance with the law. In the phraseology of the
procedural law, there is no essential difference between the authentication of a will and the probate
thereof. The words authentication and probate are synonymous in this case. All the law requires is
that the competent court declare that in the execution of the will the essential external formalities
have been complied with and that, in view thereof, the document, as a will, is valid and effective in
the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a will has been
authenticated and admitted to probate, questions relative to the validity thereof can no more be
raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate
or independent action or proceeding (sec. 625, Code of Civil Procedure; Castañeda v. Alemany, 3
Phil., 426; Pimentel v. Palanca, 5 Phil., 436; Sahagun v. De Gorostiza, 7 Phil., 347; Limjuco v.
Ganara, 11 Phil., 393; Montañano v. Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156;
Riera v. Palmaroli, 40 Phil., 105; Austria v. Ventenilla, 21 Phil., 180; Ramirez v. Gmur, 42 Phil., 855;
and Chiong Joc-Soy v. Vaño, 8 Phil., 119).
But there is another reason which prevents the appellant herein from successfully maintaining the
present action and it is that inasmuch as the proceedings followed in a testamentary case are in rem,
the trial court’s decree admitting the will to probate was effective and conclusive against her, in
accordance with the provisions of section 306 of the said Code of Civil Procedure which reads as
follows:jgc:chanrobles.com.ph
"SEC. 306. EFFECT OF JUDGMENT. — . . .
"1. In case of a judgment or order against a specific thing, or in respect to the probate of a will, or
the administration of the estate of a deceased person, or in respect to the personal, political, or legal
condition or relation of a particular person, the judgment or order is conclusive upon the title of the
thing, the will or administration, or the condition or relation of the person: Provided, That the
probate of a will or granting of letters of administration shall only be prima facie evidence of the
death of the testator or intestate; . . ."

On the other hand, we are at a loss to understand how it was possible for the herein appellant to
appeal from the order of the trial court denying her motion for reconsideration and a new trial, which
is interlocutory in character. In view of this erroneous interpretation, she succeeded in appealing
indirectly from the other admitting the will to probate which was entered one year and seven months
ago.
Before closing, we wish to state that it is not timely to discuss herein the validity and sufficiently of
the execution of the will in question. As we have already said, this question can no more be raised in
this case on appeal. After due hearing, the court found that the will in question was valid and
effective and the order admitting it to probate, thus promulgated, should be accepted and respected
by all. The probate of the will in question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So
ordered.
Avanceña, C.J., Malcolm, Villa-Real and Hull, JJ., concur.

FIRST DIVISION
[G.R. No. 108581. December 8, 1999.]
LOURDES L. DOROTHEO, Petitioner, v. COURT OF APPEALS, NILDA D. QUINTANA, for

Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE
DOROTHEO, Respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order that has
become final and executory still be given effect? This is the issue that arose from the following
antecedents: chanrobles lawlibrary : rednad
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter
died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after
Alejandro’s death, Petitioner, who claims to have taken care of Alejandro before he died, filed a
special proceeding for the probate of the latter’s last will and testament. In 1981, the court issued an
order admitting Alejandro’s will to probate. Private respondents did not appeal from said order. In
1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion
and issued an order, the dispositive portion of which reads: jgc:chanrobles.com.ph
"WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife
of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as
intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo
Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose
respective estates shall be liquidated and distributed according to the laws on intestacy upon
payment of estate and other taxes due to the government." 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she
took care of Alejandro prior to his death although she admitted that they were not married to each
other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but
the same was dismissed for failure to file appellant’s brief within the extended period granted. 2 This
dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment
was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the
lower court to implement the final and executory Order. Consequently, private respondents filed
several motions including a motion to compel petitioner to surrender to them the Transfer
Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to
surrender the TCT’s, private respondents filed a motion for cancellation of said titles and for issuance
of new titles in their names. Petitioner opposed the motion. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and
executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of
execution, on the ground that the order was merely "interlocutory", hence not final in character. The
court added that the dispositive portion of the said Order even directs the distribution of the estate
of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in
an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of
Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private
respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse
of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge

Angas cannot be said to have no jurisdiction because he was particularly designated to hear the
case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the
January 30, 1986 Order which declared the intrinsic invalidity of Alejandro’s will that was earlier
admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to
maintain the status quo or lease of the premises thereon to third parties. 3 Private respondents
opposed the motion on the ground that petitioner has no interest in the estate since she is not the
lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the entry of judgment made by the Court of
Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a
superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of
review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the
whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the
trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became
final and the question determined by the court in such order can no longer be raised anew, either in
the same proceedings or in a different motion. The matters of due execution of the will and the
capacity of the testator acquired the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being for once and forever closed. 5 Such
final order makes the will conclusive against the whole world as to its extrinsic validity and due
execution. 6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will
sought to be probated, 7 particularly on three aspects: chanroblesvirtual|awlibrary
ð whether the will submitted is indeed, the decedent’s last will and testament;
ð compliance with the prescribed formalities for the execution of wills;
ð the testamentary capacity of the testator; 8
ð and the due execution of the last will and testament. 9
Under the Civil Code, due execution includes a determination of whether the testator was of sound
and disposing mind at the time of its execution, that he had freely executed the will and was not
acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery,
10 that he was of the proper testamentary age and that he is a person not expressly prohibited by
law from making a will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even
after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically
valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the
testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful
inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof
cannot be given effect. This is specially so when the courts had already determined in a final and
executory decision that the will is intrinsically void. Such determination having attained that
character of finality is binding on this Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and executory decision of which the party had
the opportunity to challenge before the higher tribunals must stand and should no longer be
reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party
does not avail of other remedies despite its belief that it was aggrieved by a decision or court action,
then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it
has been declared that public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by law 14 become final otherwise there will be
no end to litigation. Interes rei publicae ut finis sit litium — the very object of which the courts were
constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily,
certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only
instance where a party interested in a probate proceeding may have a final liquidation set aside is

when he is left out by reason of circumstances beyond his control or through mistake or inadvertence
not imputable to negligence, 17 which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she
precisely appealed from an unfavorable order therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who
are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res
judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again
raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should
be remembered that forum shopping also occurs when the same issue had already been resolved
adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro
and his spouse should be distributed according to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set
aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are
heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require
delivery of shares from one person to another particularly when no project of partition has been
filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife
of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same
time it nullified the will. But it should be noted that in the same Order, the trial court also said that
the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no
option but to implement that order of intestate distribution and not to reopen and again re-examine
the intrinsic provisions of the same will. chanroblesvirtual|awlibrary
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that
testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass
the scrutinizing test and safeguards provided by law considering that the deceased testator is no
longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the
estate is usually onerous in nature and that no one is presumed to give — Nemo praesumitur
donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to
pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply
regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its
intrinsic validity — that is whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the
intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial
court.
Furthermore, Alejandro’s disposition in his will of the alleged share in the conjugal properties of his
late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final
and executory order. Testamentary dispositions of properties not belonging exclusively to the
testator or properties which are part of the conjugal regime cannot be given effect. Matters with
respect to who owns the properties that were disposed of by Alejandro in the void will may still be
properly ventilated and determined in the intestate proceedings for the settlement of his and that of
his late spouse’s estate.
Petitioner’s motion for appointment as administratrix is rendered moot considering that she was not
married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED. chanroblesvirtuallawlibrary:red
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
Endnotes:
1. Annex "A" of Petition; Rollo, pp. 19-20.
2. Court of Appeals resolution dated January 11, 1989 reads: "For failure of appellant to file brief
within the extended period, the appeal interposed in this case is dismissed pursuant to Section 1(f),
Rule 50 of the Rules of Court." (Rollo, p. 20).

3. Mrs. Cresild Soliman and Zaldy Adalin.
4. Manolo v. Paredes, 47 Phil. 938; In Re Estate of Johnson, 39 Phil. 156, cited in De la Cerna v.
Rebaca-Potot, 12 SCRA 576.
5. Lopez v. Gonzales, 10 SCRA 167; Mercado v. Santos, 66 Phil. 215; Manahan v. Manahan, 58 Phil.
448; Riera v. Palmanori, 40 Phil. 105; In re Estate of Johnson, 39 Phil. 156; Austria v. Ventinilla, 27
Phil. 180; Montaño v. Suesa, 14 Phil. 676; Chiong Joc-Soy v. Vaño, 8 Phil. 119.
6. Mercado v. Paredes, 47 Phil. 938.
7. Ajero v. CA, 236 SCRA 488; Acain v. CA, 155 SCRA 100; Pastor v. CA, 122 SCRA 85.
8. Vda. de Kilayko v. Tengco, 207 SCRA 600.
9. Section 1, Rule 75, Rules of Court; Nepomuceno v. CA, 139 SCRA 206; Cayetano v. Leonidas, 129
SCRA 522; Maning v. CA, 114 SCRA 478; Nuguid v. Nuguid, 17 SCRA 449.
10. Mercado v. Santos, 66 Phil. 215.
11. Articles 796-798 of the Civil Code.
12. Estate of Hilario M. Ruiz v. CA, 252 SCRA 541; Maninang, Et. Al. v. CA, 114 SCRA 473; Coronado
v. CA, 191 SCRA 814. See also Castañeda v. Alemany, 3 Phil. 426.
13. Civil Code, Article 886. "Legitime is that part of the testators property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." and
Article 904 reads "The testator cannot deprive his compulsory heirs of their legitime, except in cases
expressly specified by law. Neither can he impose upon the same any burden, encumbrance,
condition, or substitution of any kind whatsoever." (emphases supplied).
14. Dy Cay v. Crossfield and O’Brien, 38 Phil. 521.
15. De la Cerna v. Rebaca-Potot, 12 SCRA 576 (1964).
16. Dy Cay v. Crossfield and O’Brien, 38 Phil. 521.
17. Vda. De Alberto v. CA, 173 SCRA 436; Vda. de Kilayko v. Tengco, 207 SCRA 600.
18. Gatmaytan v. CA, 267 SCRA 487; see also Golangco v. CA, 283 SCRA 493.
19. Petition, p. 13; Rollo, p. 15 citing Quizon v. Castillo, 79 Phil. 9 (1947).
20. Article 960, Civil Code provides in part: "Legal or intestate succession takes place: chanrob1es virtual 1aw library
(1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity;
(2) When the will does not institute an heir to, or dispose of all property belonging to the testator. In
such case, legal succession shall take place only with respect to the property of which the testator
has not disposed;
x x x."
21. Handbook on Legal Maxims, p. 67.

CIVIL LAW | Probate of holographic will with partial date

Загружено:

Сведения о документе

Исходное описание:

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

CIVIL LAW | Probate of holographic will with partial date

Загружено:

Авторское право:

Доступные форматы

CIVIL LAW | S u c c e s s i o n

[G.R. No. 38338. January 28, 1985.]

Raul S. Sison Law Office, for Petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

1|Page #SJBL Part 3

GUTIERREZ, JR., J.:

2|Page #SJBL Part 3

We agree with the petitioner.

3|Page #SJBL Part 3

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

4|Page #SJBL Part 3

[G.R. Nos. 83843-44. April 5, 1990.]

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO LABRADOR.

Benjamin C. Santos Law Offices, for Petitioners.

Rodrigo V. Fontelera for Private Respondents.

3. ID.; ID.; HEIR REDEEMING A PROPERTY ILLEGALLY SOLD; ENTITLED TO REIMBURSEMENT. —

5|Page #SJBL Part 3

6|Page #SJBL Part 3

BY ATTY. FIDENCIO L. FERNANDEZ

III — THIRD PAGE

7|Page #SJBL Part 3

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

8|Page #SJBL Part 3

[G.R. No. 106720. September 15, 1994.]

9|Page #SJBL Part 3

Thus, this appeal which is impressed with merit.

"(a) If not executed and attested as required by law;

(c) If it was executed under duress, or the influence of fear, or threats;

(5) If the signature of the testator was procured by fraud;

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

2. Presided by Judge Felimon H. Mendoza.

3. Rollo, pp. 37-39.

4. Impugned Decision, p. 5; Rollo, p. 46.

6. See Montanano v. Suesa, 14 Phil. 676 (1909).

7. See Fernando v. Villalon, 3 Phil. 386 (1904).

[G.R. No. L-40207. September 28, 1984.]

Leandro H . Fernandez for Petitioner.

Antonio Quintos and Jose M. Yacat for Private Respondents.

CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; EFFECT OF ALTERATIONS THEREIN NOT

TEEHANKEE, J., concurring: chanrob1es virtual 1aw library

My Last will and Testament

In the name of God, Amen.

Witnesses: chanrob1es virtual 1aw library

"SO ORDERED." cralaw virtua1aw library

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Relova, J., took no part.

TEEHANKEE, J., concurring: chanrob1es virtual 1aw library

[G.R. No. L-12190. August 30, 1958.]

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for Appellant.

Arturo M. Tolentino for Appellee.

Vicente Esguerra, Sr. 5 Bahagi

Fausto E. Gan 2 Bahagi

Rosario E. Gan 2 Bahagi

Filomena Alto 1 Bahagi

Beatriz Alto 1 Bahagi

aking asawa ang magpuno upang matupad ang aking kagustuhan.’

(Lagda) Felicidad E. Alto-Yap"

Could Rule 77 be extended, by analogy, to holographic wills?

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

1. Now a member of the Court of Appeals.