[G.R. No. 95329. January 27, 1993.] "c) TRANSFER CERTIFICATE OF TITLE NO.

T-
192136 REGISTRY OF DEEDS FOR THE
PROVINCE OF BULACAN
HERACIO R. REVILLA, petitioner, vs. HON.
COURT OF APPEALS, FORTUNATO "A parcel of land (Lot 1245-A-
REVILLA, LUZ REVILLA DAVID, LORETO 6 of the subd. plan (LRC) Psd-177051,
REVILLA GUTIERREZ, VENERANDA being a portion of Lot 1245-A, Psd-
REVILLA MANIQUEZ, NICASIO REVILLA, 11366, LRC Cad. Rec. No. 700),
PERFECTA REVILLA BALACANIA, JUSTINA situated in the Barrio of Salacot, Mun. of
REVILLA DEL ROSARIO and AGRIPINA San Miguel, Prov. of Bulacan, Island of
REVILLA CHACON,respondents. Luzon. . . . containing an area of TEN
THOUSAND (10,000) SQUARE
METERS, more or less.
This is a petition for review of the decision dated September 13, 1990
Assessed value — P4,000.00.
of the Court of Appeals in CA-G.R. CV No. 18190 affirming the
decision of the Regional Trial Court of Manila, Branch 39, in Special "d) TRANSFER CERTIFICATE OF TITLE NO. T-
Proceeding No. 86-38444 which disallowed the second will 192137 REGISTRY OF DEEDS FOR THE
supposedly executed on September 13, 1982 by the late Don PROVINCE OF BULACAN
Cayetano Revilla whose first Will dated January 28, 1978 had been
probated on March 21, 1980 on his own petition in Special "A parcel of land [Lot 1245-A-
Proceeding No. 128828 of the same court, while he was still alive. 7 of the subd. plan (LRC) Psd-177051,
being a portion of Lot 1245-A, Psd-
In our resolution of November 19, 1990, we denied the petition for 11366, LRC Cad. Rec. No. 700],
review for it raises only factual issues. However, upon the petitioner's situated in the Barrio of Salacot, Mun. of
motion for reconsideration, we set aside that resolution and gave due San Miguel, Prov. of Bulacan, Island of
course to the petition so that the parties may argue their respective Luzon . . . containing an area of SEVEN
positions with more depth and scope. After a more thorough THOUSAND EIGHT HUNDRED
consideration of those arguments, we are persuaded that the decision NINETY (7,890) SQUARE METERS,
of the Court of Appeals should not be changed. LLjur more or less.
Don Cayetano Revilla y De la Fuente owned two valuable pieces of Assessed value — P3,790.00
land with buildings on Calle Azcarraga (now C.M. Recto Street) in the
City of Manila, and six (6) parcels of land in his hometown of San "e) TRANSFER CERTIFICATE OF TITLE NO. T-
Miguel, Bulacan. These properties, now worth some P30 million, are 22049 REGISTRY OF DEEDS FOR THE
registered in his name and more particularly described as follows: PROVINCE OF BULACAN

"a) TRANSFER CERTIFICATE OF TITLE NO.
76620 (now TCT No. 170750-ind.) REGISTRY
OF DEEDS FOR THE CITY OF MANILA
"A PARCEL OF LAND (Lot No.
22 of Block No. 2565 of the Cadastral
Survey of the City of Manila, Cadastral
Case No. 46, G.L.R.O. Cadastral
Record No. 229) with the buildings and
other improvements now found thereon,
situated on the SW, line of Calle
Azcarraga, District of Quiapo . . .
containing an area of ONE THOUSAND
ONE HUNDRED NINETY THREE
SQUARE METERS AND SEVENTY
SQUARE DECIMETERS (1,193.70),
more or less, Assessed value —
P1,834,980.00
"b) TRANSFER CERTIFICATE OF TITLE NO.
66173 (now TCT No. 170751-ind.) REGISTRY
OF DEEDS FOR THE CITY OF MANILA
"A PARCEL OF LAND (Lot No.
24 of Block No. 2565 of the Cadastral
Survey of the City of Manila, Cadastral
Case No. 46, G.L.R.O. Cadastral
Record No. 229) with the buildings and
improvements now found thereon,
situated on the SW, line of Calle
Azcarraga; District of Quiapo . . .
containing an area of SEVEN
HUNDRED SQUARE METERS AND
SEVENTY SQUARE DECIMETERS
(700.70), MORE OR LESS.
Assessed value —
P3,297,150.00.
"A parcel of land (Lot 1245-A-
9 of the subd. plan (LRC) Psd-177051,
being a portion of Lot 1245-A, Psd-
11366, LRC Cad. Rec. No. 700),
situated in the Barrio of Salacot,
Municipality of San Miguel, Prov. of
Bulacan, . . . containing an area of ONE
THOUSAND FIVE HUNDRED
FOURTEEN (1,514) SQUARE
METERS, more or less.
Assessed value — P4,000.00
"f) TRANSFER CERTIFICATE OF TITLE NO.
22263 REGISTRY OF DEEDS FOR THE
PROVINCE OF BULACAN
"A parcel of land (Lot No. 722
of the Cadastral Survey of San Miguel),
situated in the Municipality of San
Miguel, . . . containing an area of
SEVENTEEN THOUSAND AND
EIGHTY SIX (17,086) SQUARE
METERS, more or less.
Assessed value — P4,190.00
"g) TRANSFER CERTIFICATE OF TITLE NO. T-
242301 REGISTRY OF DEEDS FOR THE
PROVINCE OF BULACAN
"A parcel of land (Lot 108 of
the Cad. Survey of San Miguel),
situated in the Municipality of San
Miguel, . . . containing an area of FIVE
HUNDRED AND SEVENTY THREE
SQUARE METERS more of less.
Assessed value — P8,600.00
 "h) Cemetery lots with a mausoleum (Lots Nos.
66, 67, 68, 69, 70 and 71, Block No. 3) situated
at the Sta. Rita Memorial Park, San Miguel,
Bulacan (no commercial value)." (pp. 63-64,
Rollo.)
On January 28, 1978, Don Cayetano Revilla, a bachelor, without issue
nor any surviving ascendants, executed a last will and testament
bequeathing all his properties to his nine (9) nephews and nieces, the
parties herein, who are full blood brothers and sisters, including the
petitioner, Heracio Revilla. To each of them, he bequeathed an
undivided one-tenth (1/10) of his estate reserving the last tenth for the
masses to be said after his death, and for the care of the religious
images which he kept in a chapel in San Miguel, Bulacan, where
masses could be held also (p. 126, Records).
During his lifetime, Don Cayetano had himself sought the probate of
his will and on March 21, 1980 the Court of First Instance of Manila,
Branch X, after due hearing in Special Proceeding No. 128828,
allowed and admitted said will to probate.
On November 19, 1981, however, the City Hall of Manila was
destroyed by fire. The records of Special Proceeding No. 128828 also
went up in flames. Shortly thereafter, a petition for reconstitution of
the records of Special Proceeding No. 128828 was filed, and after a
proper hearing wherein Don Cayetano testified again, the petition for
reconstitution was granted (Exh. '34'). (pp. 51-52, 179, Rollo.).
Don Cayetano died on November 11, 1986 at the age of 91.
On November 19, 1986, Heracio Revilla, the oldest nephew, filed a
petition for probate of another will, allegedly executed by Don
Cayetano on September 13, 1982 wherein he (Heracio) was instituted
as sole heir of his uncle's estate and executor of the will.
The probate of the second will was opposed by Heracio's eight (8)
brothers and sisters, the private respondents herein. As ground for
their opposition, they alleged:
". . . a) that on March 21, 1980 in Special
Proceeding No. 128828, the then Court of First
Instance of Manila, Branch 10, allowed and
admitted to probate the last will and testament of
the deceased Cayetano Revilla and that since
then and up to the time of his death. Cayetano
Revilla never informed them that he revoked the
will dated January 28, 1978; (b) that the will
sought to be probated was not executed in
accordance with law and that the signature of
Cayetano Revilla was different from his usual
and customary signature; (c) that when the will
was allegedly executed the decedent was
already of unsound mind or otherwise mentally
incapable of making a will or was already
incompetent and could not, without outside aid,
take care of himself and manage his properties
becoming thereby an easy prey of deceit and
exploitation; d) that the alleged will was executed
with undue and improper pressure and influence
on the part of the beneficiaries thereon or some
other persons for their benefit; e) that the will is
void and ineffective for the reason that it was
executed under duress or the influence of fear or
of threats; and f) that the decedent acted by
mistake and the signatures in the alleged will
were procured by fraud or trick, and he did not
intend that the instrument should be his will at the
time of fixing (sic) his signatures thereto"
(Opposition to Probate of Alleged Will, pp. 7-8,
Records).
The private respondents also opposed Heracio's petition for
appointment as executor and/or special administrator of the estate on
the ground that the alleged will is null and void, hence the designation
therein of Heracio as executor is likewise null and void, and that
moreover, he is unfit for the trust (pp. 9-12, Records).
In an order dated May 7, 1987, the lower court held in abeyance the
resolution of the issue with regard to the propriety of Heracio's being
appointed as executor (pp. 34-36, Records), but ordered the parties
to present their evidence pro and con vis-a-vis the probate of the
second will (Ibid).
On December 1, 1987, the trial court rendered a decision disallowing
the second will and, accordingly, dismissed the case with costs
against the petitioner (Decision, pp. 144-184, Records; pp. 52-53,
Rollo.).
On appeal to the Court of Appeals (CA-G.R. CV No. 18190, Sept. 19,
1990), the decision of the lower court was affirmed. This petition for
review was filed by Heracio under Rule 45 of the Rules of Court.
The lone issue in this case is whether the Court of Appeals (and the
trial court) erred in disallowing the alleged second will of Don
Cayetano Revilla. LibLex
After a careful examination of the records, we share the appellate
court's doubts regarding the authenticity and due execution of the
second will. Indeed, when Don Cayetano testified on November 27,
1982 in the reconstitution proceedings, he was unaware of the second
will which he supposedly made only two months previous on
September 13, 1982. He identified his first will and declared that it was
his true and only will. He denied having subsequently made another
will. He could not have executed a second will September 13, 1982
because he was sick in the hospital at that time - for two (2) months
before October 21, 1982, or, in August to September 1982, and he did
not, and could not, sign any papers while he was confined in the
hospital.
"ATTY. DAVID
May I request that this letter dated
October 21, 1982, be marked Exhibit
'C'. . .
"xxx xxx xxx.
"By the way Mr. Revilla, will you tell us
whether you can still read when you
signed this letter?
"A Yes, I can.
"Q Did you read the contents of this letter?
"A Yes, I did.
"Q When you were sick, before you signed this
letter on October 21, 1982, were you
confined at the hospital?
"A Yes.
"Q How long were you confined at the hospital,
was it for one month?
"A More than one month, may be two months.
"Q When you were in the hospital you cannot
sign because you were sick?
"A No, I cannot sign.
"xxx xxx xxx.
"Q Will you tell us Don Cayetano if you ever
executed a last will and testament after
this one has been probated by the
Court?
 "A None, sir." (pp. 20-30, tsn, November 27,
1982.)
He recognized the original will and acknowledged that he signed it.
"ATTY. DAVID
". . . we were granted by the Court
permission to come here to find out from
you about your will approved by the
Don Cayetano declared that he understood that the document inside
Court which was burned which needs to
the envelope was his will ["naiintindihan ko po iyon" (p. 131, Rollo)].
be reconstituted which Atty. Dacanay
undertook as your counsel and I was
included because your heirs requested
me, . . . Since the document were
burned, we have here a brown envelope
which states on its face 'Buksan ito
pagkalibing ko' - then a signature
Cayetano Revilla - that one in the Court
which was approved by the Court we
would like to request from you if this is
the envelope which contains a copy of
the will and if this is your signature?
"xxx xxx xxx.
"Q And at the back of this envelope are four
signatures, are these your signatures?
"A (Looking over the four signatures at the back
of the envelope) Yes, these are all my
signatures.
"Q And your instructions were to open this
envelope . . . 'Buksan ito pagkalibing
ko.'
"A Yes, that is right.
"Q And since you are still alive you asked the
Court that your last will and testament
be approved and allowed and what is in
the last will and testament is what will
prevail?
"A Yes, sir." (pp. 119-120, Rollo; Emphasis ours.)
He identified his first will and directed Atty. David to deliver it to the
He recognized himself and his lawyer, Attorney Benjamin Dacanay,
Court: "siyang ibigay sa husgado" (p. 122, Rollo).
in the pictures that were taken during the signing of his first will.
"ATTY. DAVID
"Now that I have told you in the
presence of your grandson-in-law, Atty.
Latosa, that the last will and testament
which the court admitted and allowed to
probate was burned, why I asked you if
this is the envelope and you remember
this is the envelope and you said you
do, and that the five signatures
appearing in this envelope are your
signatures, now are you willing to have
this envelope opened?
"A Yes, kung anong nandiyan, siyang ibigay sa
husgado." (p. 122, Rollo).
Although the envelope containing a copy of the first will was sealed,
with instructions to open it after his funeral, Don Cayetano wanted "to
open it now" (p. 123, Rollo).
"ATTY. LATOSA
"Can you please read what is written in
that envelope which you allowed to be
opened.
"A Yes, 'buksan ito pagkalibing ko.'
"ATTY. DAVID
"Do you want to open this now?
"A Yes.
"Q Do you wish to open this envelope now?
"A Yes, I want to open it now."(p. 123, Rollo.)
"Q This envelope which contained the last will
and testament which I took the contents
in your presence and in the presence of
the other representation here including
the representatives of the Court, the
document contained therein is entitled.
'Unang Pahina. Huling Habilin ni Don
Cayetano Revilla.' consisting of
fourteen pages, the title means that this
is your last will and testament?
"A Yes, Naiintindihan ko po iyon.
"Q And you executed this on the 28 of January
as appearing . . . 28th of January 1978,
as appearing on the 13th page of this
last will and testament?
"A Yes.
"Q And all the pages of this last will and
testament were all signed by you which
reads Cayetano Revilla, will you go over
these fourteen pages and tell us if the
signatures here reading Cayetano
Revilla are your signatures?
"A (After going over the document, page by page
and looking at the signature reading
Cayetano Revilla in every page).
"Yes, these are all my signatures, the
ones reading Cayetano Revilla." (p.
131, Rollo; Emphasis supplied.).
"Q Now, in this envelope there are pictures five
pictures in all, will you go over these and
tell us if you can remember any of those
persons appearing in the pictures?
"A This one. (testator pointing to a person in the
picture) is Mr. Dacanay.
"ATTY. DAVID
"May I request that this picture wherein
Don Cayetano Revilla identified Atty.
Dacanay, be marked as Exhibit 'D'.).
"There is a person in this picture, the
one second from the left, will you go
over it and see if you remember that
person?
"A I am that person.
"Q Now in this second picture, do you recognize
anybody here?
"A Yes, I can recognize myself when I was
signing the will.
 "Q Who else do you know is present in that
picture?
"A This one, he is Mr. Dacanay.
"Q How about the other one?
"A I don't know the others." (p. 133, Rollo;
Emphasis supplied).
Don Cayetano assured Attorney David that his original will was his
"genuine will and testament and not changed" (p. 134, Rollo).
"ATTY. DAVID
"xxx xxx xxx.
"We are doing this Mr. Revilla because
in case there will be an opposition to this
last will and testament we can prove
that this is the genuine will and
testament and not changed.
"A Yes, that is true sir, that is the truth." (p. 134,
Rollo.)
He declared that he did not execute another last will and testament
after the original will had been probated.
"Q Will you tell us Don Cayetano if you ever
executed a last will and testament after
this one has been probated by the
Court?
"A None, sir." (p. 135, Rollo.)
The petitioner's contention that Don Cayetano's denial constitutes
"negative declaration" which has no "probative value under the rules
of evidence" (p. 73, Rollo) is not correct. Don Cayetano's assertion
that he did not execute another will, was not negative evidence.
Evidence is negative when the witness states that he did not see or
know the occurrence of a fact, and positive when the witness affirms
that a fact did or did not occur (2 Moore on Facts, p. 1338). Don
Cayetano's declaration that he did not execute a second will,
constitutes positive evidence of a fact personally known to himself:
that he did not make a second will. As correctly held by the Court of
Appeals:
"This categorical denial by the late Cayetano
Revilla must be believed by everybody. If he
denied having executed another will, who are we
to insist that he made another or second will after
the probate of his will dated January 28, 1978?
The testimonies of the alleged notary public as
well as the three instrumental witnesses of the
alleged second will of the late Cayetano Revilla
cannot outweigh the denial of the late Cayetano
Revilla. . . ." (p. 95, Rollo.)
Significantly, although the petitioner opposed the reconstitution of
Don Cayetano's first will, he did not reveal the second will which Don
Cayetano supposedly made only two (2) months before he testified in
the reconstitution proceeding. Why was the second will kept under
wraps? Did Heracio fear that if Don Cayetano were confronted with
the document, he would have disowned it? The explanation of the
petitioner that an inquiry into the existence of the second will "was
totally uncalled for, immaterial, and irrelevant" (p. 96, Rollo), is
unconvincing. For if the second will already existed on November 27,
1982, it would have been Heracio's strongest argument against the
reconstitution of the probate of the first will. LexLib
The petitioner's argument that Don Cayetano's testimony is
inadmissible because petitioner's counsel, Attorney Layosa,
had no opportunity to cross-examine him (p. 146, Rollo), does not
wash. The opportunity was there all the time. Attorney Layosa simply
made no attempt to exercise his right to cross-examine Don
Cayetano.
If Don Cayetano's testimony was "an honest mistake due to a
misapprehension of fact" as the petitioner insists (p. 35, Rollo), that
mistake would have been rectified by inviting his attention to the
second will. It seems, however, that Attorney Layosa was under
constraint not to disclose the second will to Don Cayetano.
Even the letter that Don Cayetano supposedly sent to the court
disowning the petition for reconstitution of the records of the first
probate proceeding, did not disclose that he had already made
another will. As pointedly observed by the Court of Appeals, if Don
Cayetano were aware that he made a second will, he "could have
easily told the Court that the reconstitution proceeding was useless"
because he had already made a second will revoking the first (pp. 54-
55, Rollo).
The testimonies of the notary and attesting witnesses and even the
photographs of what purported to be the signing of the second will
were not given credit by the trial court and the Court of Appeals. The
court's observation that the photographs do not show the nature of the
document that was being signed, nor the date of the transaction, is
valid. The lower court's distrust for the testimonies of the attesting
witnesses to the second will deserves our highest respect (People vs.
Sarol, 139 SCRA 125; Guita vs. CA, 139 SCRA 576; People vs.
Cabanit, 139 SCRA 94).
Since the execution of the second will could not have occurred on the
date (September 13, 1982) appearing therein (for Don Cayetano was
admittedly sick in the hospital then) it must have been procured at the
time when the testator was a virtual prisoner, held incommunicado, in
his house. The Honorable Judge (later Court of Appeals Justice)
Eduardo Bengson had to issue an order commanding the petitioner
to allow his eight (8) brothers and sisters to visit Don Cayetano. Only
then were they able to penetrate the iron curtain that Heracio had
placed around their uncle. A videotape, taken during their pleasant
visit with the old man and shown in court, belied Heracio's allegation
that Don Cayetano was displeased with his said nephews and nieces,
that was why he left them out of second will.
Despite Judge Bengzon's order, Heracio did not cease his efforts to
monopolize Don Cayetano and his estate. To isolate Don Cayetano
and make him inaccessible to the private respondents, Heracio
transferred him from his own house on Claro M. Recto Avenue in
Manila to Heracio's house in Novaliches, Quezon City.
The execution of the second will in an environment of secrecy and
seclusion and the disinheritance of his eight (8) other nephews and
nieces of whom he was equally fond, justified the trial court's and the
Court of Appeals' belief that undue influence was exercised by
Heracio over Don Cayetano to make him sign the second will (which
Don Cayetano did not know to be such) in order to deprive his brothers
and sisters of their rightful share in their uncle's estate.
The employment of undue influence by Heracio was not "mutually
repugnant" to fraud (p. 172, Rollo) as the petitioner insists, for it was
the means employed by Heracio to defraud his brothers and sisters of
their share in Don Cayetano's estate.
There was fraud because Don Cayetano was not apprised that the
document he was signing with Co, Barredo and Lim was a second will
revoking the dispositions of property that he made in his first will. Had
he been aware that it was a second will, and if it were prepared at his
own behest, he would not have denied that he made it. He would
probably have caused it to be probated while he was still alive, as he
did with his first will.
But apparently, the instrument was foisted on him without his being
aware of its true nature which the petitioner assiduously concealed,
not only from the court and the private respondents, but from Don
Cayetano himself.
That the dispositions in the second will were not made by Don
Cayetano is proven by the omission therefrom of Don Cayetano's
reservation of one-tenth of his properties and the income thereof to
pay for holy masses for the repose of his soul and to be spent for the
maintenance of his family chapel which houses the religious images
he owned in San Miguel, Bulacan. That provision in his first will, for
his personal benefit, would not have been deleted by Don Cayetano
if his only purpose in making a second will was to disinherit his eight
nephews and nieces. But Heracio overdid himself. He wanted
everything. llcd
The objection to the deposition of Don Cayetano for want of an oath
before he testified, is tardy. Objection to the lack of oath should have
been made at the taking of his deposition. Section 29(d), Rule 24 of
the Rules of Court provides:
"(d) As to oral examination and other particulars.
—
"Errors and irregularities occurring at the oral
examination in the manner of taking the
deposition, in the form of the questions or
answers, in the oath or affirmation, or in the
conduct of the parties and errors of any kind
which might be obviated, removed, or cured if
promptly prosecuted, are waived unless
reasonable objection thereto is made at the
taking of the deposition." (Emphasis ours.)
While the petitioner puts much stock in the supposed due execution
of the will and the competence of the attesting witnesses — Co,
Barredo and Lim — the trial court, with whom the Court of Appeals
agreed, gave them low marks for credibility. The factual observations
of the Court of Appeals on this point are quoted below:
"Assuming for the sake of arguments that the
second will was executed, the testimonies of the
notary public who prepared and before whom the
will was acknowledged, as well as those of the
three (3) instrumental witnesses thereof were not
given credit by the lower court, and so with this
Court, because of major contradictions in their
testimonies.
"As regards notary public Atty. Mendoza, the
court a quo doubted his credibility as follows:
"'The prevarications on the
testimonies of witnesses are not difficult
to find especially if we consider that in a
second meeting only with Don
Cayetano, Atty. Mendoza would readily
be entrusted with the delicate and
confidential preparation of a second will,
designed to disinherit his eight nephews
and nieces in favor of Heracio, the
operator of the bowling alley where
witness Mendoza always play; . . .' (p.
36, Decision; p. 179, Records).
'. . . Added to this is the
statement of Atty. Mendoza that the old
man could understood (sic) both
English and Tagalog. On this score, this
Court entertains doubt as to its
truthfulness because it was testified to
by Barredo, prosecution witness and
corroborated by Ms. Bingel, principal
witness for the oppositors, that the old
man is versatile in Tagalog as he is a
Bulakeño but could not speak English
except to say word, yes, sir . . .' (p. 33,
Decision, p. 176, Records).
"With respect to witness Alfredo Barredo, the
truthfulness of his testimonies was doubted by
the lower court in this wise:
'. . . Another point noticed by
this Court is the testimony of Alfredo
Barredo that after talking with Atty.
Mendoza at the phone he was asked by
the old man to fetch the 2 witnesses
however when asked on direct
examination, he stated that he stayed
all along with the old man and did not
leave him even after talking with Atty.
Mendoza, which spells a whale of
difference in time element and
enormously distanced from the truth. So
also, his exaggerated demonstration of
the ability of the old man in answering
even small children yes, sir, is too good
to be true . . .' (pp. 33-34, Decision, pp.
176-177, Records).
"Witness Dr. Co's testimony that he did not
charge the late Cayetano Revilla for two services
rendered by him and that he only charged when
a third service was made was also doubted by
the lower court. Said the court a quo:
'. . . witness Co, a practicing
dentist was munificent enough not to
charge Don Cayetano for two time
services and only charged him the 3rd
time.'
It may be added here that the testimony of Dr. Co
that the testator read his will in silence before
they were asked to affix their signatures (tsn.,
Aug. 17, 1987, pp. 30-31, 45) is completely
different from the testimony of another witness
(Fernando Lim) who testified that the late Don
Cayetano read his will aloud before he gave it to
the witnesses for their signatures (tsn., Aug. 13,
1987, pp. 47, 52). LibLex
"The above citations of the inconsistencies and
contradictions fatally made by said witnesses are
only some of the more important one as
discussed in the decision of the lower court. But
they are enough, to say the least, to convince this
Court that indeed said witnesses crossed the
boundaries of their credibilities." (pp. 56-57,
Rollo.)
WHEREFORE, finding no reversible error in the decision of the Court
of Appeals, the petition for review is DENIED. Costs against the
petitioner.
SO ORDERED.
ATILANO G. MERCADO, petitioner, vs.
ALFONSO SANTOS, Judge of First Instance
of Pampanga, and IÑIGO S. DAZA, Provincial
Fiscal of Pampanga,respondents. ROSARIO
BASA DE LEON, ET AL., intervenors.
SYLLABUS
1. WILLS; CONCLUSIVENESS OF THE DUE
EXECUTION OF A PROBATED WILL. — Section 625 of the
Code of Civil Procedure is explicit as to the conclusiveness of the
due execution of a probated will. It provides: "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."
2. ID.; ID. — The probate of a will by the probate court
having jurisdiction thereof is considered as conclusive as to its
due execution and validity, and is also conclusive 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, and that the will is genuine and not a forgery.
3. ID.; ID.; PROCEEDING "IN REM". — The probate of
a will in this jurisdiction is a proceeding in rem. The provision of
notice by publication as a prerequisite to the allowance of a will
is constructive notice to the whole world, and when probate is
granted, the judgment of the court is binding upon everybody,
even against the State.
4. ID.; ID.; CONCLUSIVE PRESUMPTION. —
Conclusive presumptions are inferences which the law makes so
peremptory that it will not allow them to be overturned by any
contrary proof however strong. The will in question having been
probated by a competent court, the law will not admit any proof
to overthrow the legal presumption that it is genuine and not a
forgery.
5. ID.; ID.; CRIMINAL ACTION AGAINST FORGER OF
A DULY PROBATED WILL. — Upon the facts stated in the
opinion of the court, it was held: That in view of the provisions of
sections 306, 333 and 625 of the Code of Civil Procedure,
criminal action will not lie in this jurisdiction against the forger of
a will which had been duly admitted to probate by a court of
competent jurisdiction.
6. CRIMINAL LAW; PROSECUTION OF OFFENSES;
RIGHT TO A SPEEDY TRIAL. — The prosecution of offenses is
a matter of public interest and it is the duty of the government or
those acting in its behalf to prosecute all cases to their
termination without oppressive, capricious and vexatious delay.
The Constitution does not say that the right to a speedy trial may
be availed of only where the prosecution for crime is commenced
and undertaken by the fiscal. It does not exclude from its
operation cases commenced by private individuals. Where once
a person is prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in which it
is authorized to be commenced. In any event, even the actuations
of the fiscal himself in this case is not entirely free from criticism.
7. ID.; ID. — In Kalaw vs. Apostol (G. R. No. 45591, Oct.
15, 1937), the Supreme Court observed that the prosecuting
officer is in charge and has under the direction and control all
prosecutions for public offenses (sec. 1681 and 2465 of the Rev.
Adm. Code), and that it is his duty to see that criminal cases are
heard without vexatious, capricious and oppressive delays so
that the courts of justice may dispose of them on the merits and
determine whether the accused is guilty or not. This is as clear
an admonition as could be made. An accused person is entitled
to a trial at the earliest opportunity. (Sutherland on the
Constitution, 664; United States vs. Fox, 3 Mont., 512.) He cannot
be oppressed by delaying the commencement of trial for an
unreasonable length of time. If the proceedings pending trial are
deferred, the trial itself is necessarily delayed.
8. ID.; ID.; ID. — It is not to be supposed, of course, that
the Constitution intends to remove from the prosecution every
reasonable opportunity to prepare for trial. Impossibilities cannot
be expected or extraordinary efforts required on the part of the
prosecutor or the court. As stated by the Supreme Court of the
United States, "The right of a speedy trial is necessarily relative.
It is consistent with delays and depends upon circumstances. It
secures rights to a defendant. It does not preclude the rights of
public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S.
Ct., 573; 49 Law. ed., 950, 954.)
On May 28, 1931, the petitioner herein filed in the Court
of First Instance of Pampanga a petition for the probate of the will
of his deceased wife, Ines Basa. Without any opposition, and
upon the testimony of Benigno F. Gabino, one of the attesting
witnesses, the probate court, on June 27, 1931, admitted the will
to probate. Almost three years later, on April 11, 1934, the five
intervenors herein moved ex parte to reopen the proceedings,
alleging lack of jurisdiction of the court to probate the will and to
close the proceedings. Because filed ex parte, the motion was
denied. The same motion was filed a second time, but with notice
to the adverse party. The motion was nevertheless denied by the
probate court on May 24, 1934. On appeal to this court, the order
of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33
off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen
months after the probate of the will of Ines Basa, intervenor
Rosario Basa de Leon filed with the justice of the peace court of
San Fernando, Pampanga, a complaint against the petitioner
herein, for falsification or forgery of the will probated as above
indicated. The petitioner was arrested. He put up a bond in the
sum of P4,000 and engaged the services of an attorney to
undertake his defense. Preliminary investigation of the case was
continued twice upon petition of the complainant. The complaint
was finally dismissed, at the instance of the complainant herself,
in an order dated December 8, 1932. Three months later, or on
March 2, 1933, the same intervenor charged the petition for the
second time with the same offense, presenting the complaint this
time in the justice of the peace court of Mexico, Pampanga. The
petitioner was again arrested, again put up a bond in the sum of
P4,000, and engaged the services of counsel to defend him. This
second complaint, after investigation, was also dismissed, again
at the instance of the complainant herself who alleged that the
petitioner was in poor health. That was on April 27, 1933. Some
nine months later, on February 2, 1934, to be exact, the same
intervenor accused the same petitioner for the third time of the
same offense. The information was filed by the provincial fiscal of
Pampanga in the justice of the peace court of Mexico. The
petitioner was again arrested, again put up a bond of P4,000, and
engaged the services of defense counsel. The case was
dismissed on April 24, 1934, after due investigation, on the
ground that the will alleged to have been falsified had already
been probated and there was no evidence that the petitioner had
forged the signature of the testatrix appearing thereon, but that,
on the contrary, the evidence satisfactorily established the
authenticity of the signature aforesaid. Dissatisfied with the
result, the provincial fiscal, on May 9, 1934, moved in the Court
of First Instance of Pampanga for reinvestigation of the case. The
motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of
counsel to handle his defense. The reinvestigation dragged on
for almost a year until February 18, 1934, when the Court of First
Instance ordered that the case be tried on the merits. The
petitioner interposed a demurrer on November 25, 1935, on the
ground that the will alleged to have been forged had already been
probated. This demurrer was overruled on December 24, 1935,
whereupon an exception was taken and a motion for
reconsideration and notice of appeal were filed. The motion for
reconsideration and the proposed appeal were denied on
January 14, 1936. The case proceeded to trial, and forthwith
petitioner moved to dismiss the case claiming again that the will
alleged to have been forged had already been probated and,
further, that the order probating the will is conclusive as to the
authenticity and due execution thereof. The motion was overruled
and the petitioner filed with the Court of Appeals a petition for
certiorari with preliminary injunction to enjoin the trial court from
further proceedings in the matter. The injunction was issued and
thereafter, on June 19, 1937, the Court of Appeals denied the
petition for certiorari, and dissolved the writ of preliminary
injunction. Three justices dissented in a separate opinion. The
case is now before this court for review on certiorari.
Petitioner contends: (1) that the probate of the will of his
deceased wife is a bar to his criminal prosecution for the alleged
forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides
as to the effect of judgment:
"SEC. 306. Effect of judgment. — The
effect of a judgment or final order in an action or
special proceeding before a court or judge of the
 Philippine Islands or of the United States, or of
any State or Territory of the United States, having
jurisdiction to pronounce the judgment or order,
may be as follows:
"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:
xxx xxx xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the
conclusiveness of the due execution of a probated will. It says:
"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." (Emphasis ours.)
In Manahan vs. Manahan (58 Phil., 448, 451), we held:
". . . 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;
Castaneda vs. Alemany, 3 Phil., 426;
Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs.
De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara,
11 Phil., 393; Montañano vs. Suesa, 14 Phil.,
676; In re Estate of Johnson, 39 Phil., 156;
Riera vs. Palmaron, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42
Phil., 855; and Chiong Joc-soy vs. Vano, 8 Phil.,
119."
In 28 R. C. L., p. 377, section 378, it is said:
"The probate of a will by the probate
court having jurisdiction thereof is usually
considered as conclusive as to its due execution
and validity, and is also conclusive 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, and that the will is genuine and not a
forgery." (Emphasis ours.)
As our law on wills, particularly section 625 of our Code
of Civil Procedure aforequoted, was taken almost bodily from the
Statutes of Vermont, the decisions of the Supreme Court of that
State relative to the effect of the probate of a will are of persuasive
authority in this jurisdiction. The Vermont statute as to the
conclusiveness of the due execution of a probated will reads as
follows:
"SEC. 2356. No will shall pass either
real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the
country or supreme court; and the probate of a
will of real or personal estate shall be conclusive
as to its due execution." (Vermont Statutes, p.
451.)
Said the Supreme Court of Vermont in the case of
Missionary Society vs. Eelss (68 Vt., 497, 504): "The probate of
a will by the probate court having jurisdiction thereof, upon the
due notice, is conclusive as to its due execution against the whole
world. (Vt. St., sec. 2336; Foster's Exrs. vs. Dickerson, 64 Vt.,
233.)"
The probate of a will in this jurisdiction is a proceeding in
rem. The provision of notice by publication as a prerequisite to
the allowance of a will is constructive notice to the whole world,
and when probate is granted, the judgment of the court is binding
upon everybody, even against the State. This court held in the
case of Manalo vs. Paredes and Philippine Food Co. (47 Phil.,
938):
"The proceeding for the probate of a will
is one in rem (40 Cyc., 1265), and the court
acquires jurisdiction over all the persons
interested, through the publication of the notice
prescribed by section 630 of the Code of Civil
Procedure, and any order that may be entered
therein is binding against all of them.
"Through the publication of the petition
for the probate of the will, the court acquires
jurisdiction over all such persons as are
interested in said will; and any judgment that may
be rendered after said proceeding is binding
against the world."
In Everrett vs. Wing (103 Vt., 488, 492), the Supreme
Court of Vermont held:
"In this State the probate of a will is a
proceeding in rem, being in form and substance
upon the will itself to determine its validity. The
judgment determines the status of the
instrument, whether it is or is not the will of the
testator. When the proper steps required by law
have been taken the judgment is binding upon
everybody, and makes the instrument as to all
the world just what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs.
Little, 50 Vt., 713; 715; Missionary Society vs.
Eells, 68 Vt., 497, 504; 35 Atl. 463.) The
proceedings before the probate court are
statutory and are not governed by common-law
rules as to parties or causes of action.
(Holdrige vs. Holdrige's Estate, 53 Vt., 546, 550;
Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl.,
695.) No process is issued against anyone in
such proceedings, but all persons interest in
determining the state or conditions of the
instrument are constructively notified by the
publication of notice as required by G. L. 3219.
(Woodruff vs. Taylor, supra; In re Warner's
Estate 98 Vt., 254; 271; 127 Atl., 362.)"
Section 333, paragraph 4, of the Code of Civil
Procedure establishes an incontrovertible presumption in favor of
judgments declared by it to be conclusive:
"SEC. 333. Conclusive Presumptions.
— The following presumptions or deductions,
which the law expressly directs to be made from
particular facts, are deemed conclusive:
"xxx xxx xxx
"4. The judgment or order of a court,
when declared by this code to be conclusive."
Conclusive presumptions are inferences which the law
makes so peremptory that it will not allow them to be overturned
by any contrary proof however strong. (Brant vs. Morning Journal
Ass'n., 80 N. Y. S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140; 13 N. Y. S., 311.) The will
in question having been probated by a competent court, the law
will not admit any proof to overthrow the legal presumption that it
is genuine and not a forgery.
The majority decision of the Court of Appeals cites
English decisions to bolster up its conclusion that "the judgment
admitting the will to probate is binding upon the whole world as
to the due execution and genuineness of the will insofar as civil
rights and liabilities are concerned, but not for the purpose of
punishment of a crime." The cases of Dominus Rex vs. Vincent,
93 English Reports, Full Reprint, 648 and Dominus Rex vs.
Rodes, 93 English Reports, Full Reprint, 795, the first case being
decided in 1721, were cited to illustrate the earlier English
decisions to the effect that upon indictment for forging a will, the
probating of the same is conclusive evidence in the defendant's
favor of its genuine character. Reference is made, however, to
the cases of Rex vs. Gibson, 168 English Reports, Full Reprint,
836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in
1818, which establish a contrary rule. Citing these later cases,
we find the following quotation from Black on Judgments, Vol. II,
page 764:
"A judgment admitting a will to probate
cannot be attacked collaterally although the will
was forged; and a payment to the executor
names therein of a debt due the decedent will
discharge the same, notwithstanding the
spurious character of the instrument probated. It
has also been held that, upon an indictment for
forging a will, the probate of the paper in question
is conclusive evidence in the defendant's favor of
its genuine character. But this particular point has
lately been ruled otherwise."
It was the case of Rex vs. Buttery, supra, which induced
the Supreme Court of Massachusetts in the case of Waters vs.
Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority
opinion, to hold that "according to later and sounder decisions,
the probate, though conclusive until set aside of the disposition
of the property, does not protect the forger from punishment."
This was reproduced in 28 R. C. L., p. 376, and quoted in
Barry vs. Walker 9103 Fla., 533; 137 So., 711, 715), and
Thompson vs. Freeman (149 So., 740, 742), also cited in support
of the majority opinion of the Court of Appeals. The dissenting
opinion of the Court of Appeals in the instant case under review
makes a cursory study of the statutes obtaining in England,
Massachusetts and Florida, and comes to the conclusion that the
decisions cited in the majority opinion do not appear to "have
been promulgated in the face of statutes similar to ours." The
dissenting opinion cites Wharton's Criminal Evidence (11th ed.,
sec. 831), to show that the probate of a will in England is
only prima facie proof of the validity of the will (Op. Cit. quoting
Marriot vs. Marriot, 93 English Reprint, 770); and 21 L. R. A. (pp.
686-689 and note), to show that in Massachusetts there
is no statute making the probate of a will conclusive, and that in
Florida the statute (sec. 1810, Revised Statutes) makes the
probate conclusive evidence as to the validity of the will with
regard to personal, and prima facie as to real estate. The cases
decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.
The petitioner cites the case of State vs. McGlynn (20
Cal., 233, decided in 1862), in which Justice Norton of the
Supreme Court of California, makes the following review of the
nature of probate proceedings in England with respect to wills
personal and real property:
"In England, the probate of wills of
personal estate belongs to the Ecclesiastical
Courts. No probate of a will relating to real estate
is there necessary. The real estate, upon the
death of the party seized, passes immediately to
the devisee under the will if there be one; or if
there be no will, to the heir at law. The person
who thus becomes entitled takes possession. If
one person claims to be the owner under a will,
and another denies the validity of the will and
claims to be the owner as heir at law, an action
of ejectment is brought against the party who
may be in possession by the adverse claimant;
and on the trial of such an action, the validity of
the will is contested, and evidence may be given
by the respective parties as to any fraud
practiced upon him, or as to the actual execution
of it, or as to any other circumstance affecting its
character as a valid devise of the real estate in
dispute. The decision upon the validity of the will
in such action becomes res adjudicata, and is
binding and conclusive upon the parties to that
action and upon any reason who may
subsequently acquire the title from either of those
parties; but the decision has no effect upon other
parties, and does not settle what may be called
the status or character of the will, leaving it
subject to be enforced as a valid will, or defeated
as invalid, whenever other parties may have a
contest depending upon it. A judicial
determination of the character of the will itself. It
does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is
necessary in order to authorize a disposition of
the personal estate in pursuance of its
provisions. In case of any controversy between
adverse claimants of the personal estate, the
probate is given in evidence and is binding upon
the parties, who are not at liberty to introduce any
other evidence as to the validity of the will."
The intervenors, on the other hand, attempt to show that
the English law on wills is different from that stated in the case of
State vs. McGlynn, supra, citing the following statutes:
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 & 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 & 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be
granted of "every instrument purporting to be testamentary and
executed in accordance with the statutory requirements . . . if it
disposes of property, whether personal or real." the Ecclesiastical
Courts which took charge of testamentary causes (Ewell's
Blackstone [1910], p. 460), were determined by the Court of
Probate Act of 1857, and the Court of Probate in turn was,
together with other courts, incorporated into the Supreme Court
of Judicature, and transformed into the Probate Division thereof,
by the Judicature Act of 1873. (Lord Halsbury, The Laws of
England [1910], pp. 151-156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and
Macnamarra, supra, upon which they rely in support of their
theory that the probate of a forged will does not protect the forger
from punishment, was decided long before the foregoing
amendatory statutes to the English law on wills were enacted.
The case of State vs. McGlynn may be considered, therefore, as
more or less authoritative on the law of England at the time of the
promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.
In the case of State vs. McGlynn, the Attorney-General
of California filed an information to set aside the probate of the
will of one Broderick, after the lapse of one year provided by the
law of California for the review of an order probating a will, in
order that the estate may be escheated to the State of California,
on the ground that the probated will was forged and that
Broderick therefore died intestate, leaving no heirs,
representatives or devisees capable of inheriting his estate. Upon
these facts, the Supreme Court of California held:
"The fact that a will purporting to be the
genuine will of Broderick, devising his estate to a
 devisee capable of inheriting and holding it, has
been admitted to probate and established as a
genuine will by the decree of a Probate Court
having jurisdiction of the case, renders it
necessary to decide whether that decree, and the
will established by it, or either of them, can be set
aside and vacated by the judgment of any other
court. If it shall be found that the decree of the
Probate Court, not reversed by the appellate
court, is final and conclusive, and not liable to be
vacated or questioned by any other court, either
incidentally or by any direct proceeding, for the
purpose of impeaching it, and that so long as the
probate stands the will must be recognized and
admitted in all courts to be valid, then it will be
immaterial and useless to inquire whether the will
in question was in fact genuine or forged."
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec.,
118, 121.)
Although in the foregoing case the information filed by
the State was to set aside the decree of probate on the ground
that the will was forged, we see nodifference in principle between
that case and the case at bar. A subtle distinction could perhaps
be drawn between setting aside a decree of probate, and
declaring a probated will to be a forgery. it is clear, however, that
a duly probated will cannot be declared to be a forgery without
disturbing in a way the decree allowing said will to probate. It is
at least anomalous that a will should be regarded as genuine for
one purpose and spurious for another.
The American and English cases show a conflict of
authorities on the question as to whether or not the probate of a
will bars criminal prosecution of the alleged forger of the probated
will. We have examined some important cases and have come to
the conclusion that no fixed standard may be adopted or drawn
therefrom, in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It
behooves us, therefore, as the court of last resort, to choose that
rule most consistent with our statutory law, having in view the
needed stability of property rights and the public interest in
general. To be sure, we have seriously reflected upon the
dangers of evasion from punishment of culprits deserving of the
severity of the law in cases where, as here, forgery is discovered
after the probate of the will and the prosecution is had before the
prescription of the offense. By and large, however, the balance
seems inclined in favor of the view that we have taken. Not only
does the law surround the execution of the will with the necessary
formalities and require probate to be made after an elaborate
judicial proceeding, but section 113, not to speak of section 513,
of our Code of Civil Procedure provides for an adequate remedy
to any party who might have been adversely affected by the
probate of a forged will, much in the same way as other parties
against whom a judgment is rendered under the same or similar
circumstances. (Pecson vs. Coronel, 43 Phil., 358.) The
aggrieved party may file an application for relief with the proper
court within a reasonable time, but in no case exceeding six
months after said court has rendered the judgment of probate, on
the ground of mistake, inadvertence, surprise or excusable
neglect. An appeal lies to review the action of a court of first
instance when that court refuses to grant relief. (Banco Español-
Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing
Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.)
After a judgment allowing a will to be probated has become final
and unappelable, and after the period fixed by section 113 of the
Code of Civil Procedure has expired, the law as an expression of
the legislative wisdom goes no further and the case ends there.
". . . The court of chancery
has no capacity, as the authorities have settled,
to judge or decide whether a will is or is not a
forgery; and hence there would be an incongruity
in its assuming to set aside a probate decree
establishing a will, on the ground that the decree
was procured by fraud, when it can only arrive at
the fact of such fraud by first deciding that the will
was a forgery. There seems, therefore, to be a
substantial reason, so long as a court of
chancery is not allowed to judge of the validity of
a will, except as shown by the probate, for the
exception of probate decrees from the jurisdiction
which courts of chancery exercise in setting
aside other judgments obtained by fraud. But
whether the exception be founded in good
reason or otherwise, it has become too firmly
established to be disregarded. At the present
day, it would not be a greater assumption to deny
the general rule that courts of chancery may set
aside judgments procured by fraud, than to deny
the exception to that rule in the case of probate
decrees. We must acquiesce in the principle
established by the authorities, if we are unable to
approve of the reason. Judge Story was a
staunch advocate for the most enlarged
jurisdiction of courts of chancery, and was
reluctant to allow the exception in cases of wills,
but was compelled to yield to the weight of
authority. He says: 'No other excepted case is
known to exist; and it is not easy to discover the
grounds upon which this exception stands, in
point of reason or principle, although it is clearly
settled by authority.' (1 Story's Eq. Jur. sec.
440.)" (State vs. McGlyn,, 20 Cl., 233; 81 Am.
Dec., 118, 129. See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.).
We hold, therefore, that in view of the provisions of
sections 306, 333 and 625 of our Code of Civil Code Procedure,
criminal action will not lie in this jurisdiction against the forger of
a will which had been duly admitted to probate by a court of
competent jurisdiction.
The resolution of the foregoing legal question is
sufficient to dispose of the case. However, the other legal
question with reference to the denial to the accused of his right
to a speedy trial having been squarely raised and submitted, we
shall proceed to consider the same in the light of cases already
adjudicated by this court.
2. The Constitution of the Philippines provides that "In
all criminal prosecutions the accused . . . shall enjoy the right . . .
to have a speedy . . . trial . . . (Art. III, sec, 1, par. 17. See, also
G. O. No. 58 sec. 15, NO. 7.) Similar provisions are to be found
in the President's Instructions to the Second Philippine
Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5,
par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The
provision in the foregoing organic acts appear to have been taken
from similar provisions in the Constitution of the United States
(6th Amendment) and those of the various states of the American
Union. A similar injunction is contained in the Malolos
Constitution ( art. 8, Title IV), not to speak of other constitutions.
More than once this court had occasion to set aside the
proceedings in criminal cases to give effect to the constitutional
injunction of speedy trial. (Conde vs. Judge of First Instance and
Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and
Unson [1924], 45 Phil., 650; People vs. Castañeda and
Fernandez [1936]), 35 Off. GAz., 1269; Kalaw vs. Apostol, Oct.
15, 1937, G. R. No. 45591; Esguerra vs. De la Costa, Aug. 30,
1938, G. R. NO. 46039.)
In Conde vs. Rivera and Unson, supra, decided before
the adoption of our Constitution, we said:
"Philippine organic and statutory law
expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to
have a speedy trial. Aurelia Conde, like all other
accused persons, has a right to a speedy trial in
order that if innocent she may go free, and she
has been deprived of that right in defiance of law.
Dismissed from her humble position, and
 compelled to dance attendance on courts while
investigations and trials are arbitrarily postponed
without her consent, is palpably and openly
unjust to her and a detriment to the public. By the
use of reasonable diligence, the prosecution
could have settled upon the appropriate
information, could have settled upon the
appropriate information, could have attended to
the formal preliminary examination, and could
have prepared the case for a trial free from
vexatious, capricious, and oppressive delays."
In People vs. Castañeda and Fernandez, supra, this
court found that the accused had not been given a fair and
impartial trial. The case was to have been remanded to the
court a quo for a new trial before an impartial judge. This step,
however, was found unnecessary. A review of the evidence
convinced this court that a judgment of conviction for theft, as
changed, could not be sustained and, having in view the right to
a speedy trial guaranteed by the Constitution to every person
accused of crime, entered a judgment acquitting the accused,
with costs de oficio. We said:
". . . The Constitution, Article III, section
mandamus to compel the respondent judge of the Court of First
1, paragraph 17, guarantees to every accused
Instance of Rizal to dismiss the complaint filed in a criminal case
person the right to a speedy trial. This criminal
against the petitioner, to cancel the bond put up by the said
proceeding has been dragging on for almost five
petitioner and to declare the costs de oficio. In accepting the
years now. The accused have twice appealed to
contention that the petitioner had been denied speedy trial, this
this court for redress from the wrong that they
court said:
have suffered at the hands of the trial court. At
least one of them, namely Pedro Fernandez alias
Piro, had been confined in prison from July 20,
1932 to November 27, 1934, for inability to post
the required bond of P3,000 which was finally
reduced to P300. The Government should be the
last to set an example of delay and oppression in
the administration of justice and it is the moral
and legal obligation of this court to see that the
criminal proceedings against the accused come
to an end and that they be immediately
discharged from the custody of the law.
(Conde vs. Rivera and Unson, 45 Phil., 651.)"
In Kalaw vs. Apostol, supra, the petitioner invoked and
this court applied and gave effect to the doctrines stated in the
second Conde case, supra. In granting the writs prayed for, this
court, after referring to the constitutional and statutory provisions
guaranteeing to persons accused of crime the right to a speedy
trial, said:
"Se infiere de los preceptos legales
transcritos que todo acusado en causa criminal
tiene derecho a ser juzgado pronta y
publicamente. Juicio rapido significa un juicio
que se celebra de acuerdo con la ley de
procedimiento criminal y los reglamentos, libre
de dilaciones vejatorias, caprichosas y opresivas
(Burnett vs. State, 76 Ark., 295; 88 S. W., 956;
113 AMSR, 94; Stewart vs. State, 13 Ark., 720;
Peo. vs. Shufelt, 61 Mich, 237; 28 N. W., 79;
Nixon vs. State, 10 Miss., 497; 41 AMD., 601;
State vs. Cole, 4 Okl., Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474;
State vs. Keefe, 17 Wyo., 227, 98 p., 122; 22
IRANS, 896; 17 Ann. Cas., 161). Segun los
hechos admitidos resulta que al recurrente se le
concedio vista parcial del asunto, en el Juzgado
de Primera Instancia de Samar, solo despues de
haber transcurrido ya mas de un año y medio
desde la presentacion de la primera querella y
desde la recepcion de la causa en dicho
Juzgado, y despues de haberse transferido dos
right to a speedy trial. The facts of the present case may be at
veces la vista del asunto sin su consentimiento.
variance with those of the cases hereinabove referred to.
A esto debe añadirse que la primera
Nevertheless, we are of the opinion that, under the
transferencia de vista era claramente
circumstances, we should consider the substance of the right
injustificada porque el motivo que se alego
consistio unicamente en la conveniencia
personal del ofendido y su
abogado, no habiendose probado
suficientemente la alegacion del primero de que
se hallaba enfermo. Es cierto que el recurrente
habia pedido que, en vez de seialarse a vista el
asunto para el mayo de 1936, lo fuera para el
noviembre del mismo año; pero, aparte de que la
razon que alego era bastante fuerte porque su
abogado se oponia a comparecer por
compromisos urgentes contraidos con
anterioridad y en tal circunstancia hubiera
quedado indefenso si hubiese sido obligado a
entrar en juicio, aparece que la vista se pospuso
por el Juzgado a motu proprio, por haber
cancelado todo el calendario judicial preparado
por el Escribano para el mes de junio.
Declaramos, con visto de estos hechos, que al
recurrente se le privo de su derecho fundamental
de ser juzgado prontamente."
Esguerra vs. De la Costa, supra, was a petition for
"Consta que en menos de un año el
recurrente fue procesado criminalmente por el
ageldao delito de abusos deshonestos, en el
Juzgado de Paz del Municipio de Cainta, Rizal.
Como consecuencia de las denuncias que contra
el se presentaron fue arrestado tres veces y para
gozar de libertad provisional, en espera de los
juicios, se vio obligado a prestar tres fianzas por
la suma de P1,000 cada una. Si no se da fin al
proceso que ultimamente se ha incoado contra
el recurrente la incertidumbre continuara
cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran
igualmente abrumandole. El Titulo III, articulo
1, No. 17, de la Constitucio preceptua que en
todo proceso criminal el acusado tiene derecho
de ser juzgado pronta y publicamente. El Articulo
15, No. 7, de la Orden General No. 58 dispone
asimismo que en las causas criminales el
acusado tendra derecho a ser juzgado pronta y
publicamente. Si el recurrente era realmente
culpable del delito que se le imputo, tenia de
todos modos derechos a que fuera juzgado
pronta y publicamente y sin dilaciones arbitrarias
y vejatorias. Hemos declarado reiteradamente
que existe un remedio positivo para los casos en
que se viola el derecho constitucional del
acusado de ser juzgado prontamente. El
acusado que es privado de su derecho
fundamental de ser enjuiciado rapidamente tiene
derecho a pedir que se le ponga en libertad, si
estuviese detenido, o a que la causa que pende
contra el sea sobreseida definitivamente.
(Conde contra Rivera y Unson, 45 Jur. Fil., 682;
In the matter of Ford [1911], 160 Cal., 334; U.
S. vs. Fox [1880], 3 Mont., 512;
Kalaw contraApostol, R. G. No. 45591, Oct. 15,
1937; Pueblo contra Castañeda y Fernandez, 35
Gac. Of., 1357.)"
We are again called upon to vindicate the fundamental
instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four
times, has put up a bond in the sum of P4,000 and has engaged
the services of counsel to undertake his defense an
equal number of times. The first arrest was made upon a
complaint filed by one of the intervenors herein for alleged
falsification of a will which, sixteen months before, had been
probated in court. This complaint, after investigation, was
dismissed at the complaint's own request. The second arrest was
made upon a complaint charging the same offense and this
complaint, too, was dismissed at the behest of the complainant
herself who alleged the quite startling ground that the petitioner
was in poor health. The third arrest was made following the filing
of an information by the provincial fiscal of Pampanga, which
information was dismissed, after due investigation, because of
insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against
the petitioner on the pretext that he had additional evidence to
present, although such evidence does not appear to have ever
been presented.
It is true that provincial fiscal did not intervene in the
case until February 2, 1934, when he presented an information
charging the petitioner, for the third time, of the offense of
falsification. This, however, does not matter. The prosecution of
offenses is a matter of public interest and it is the duty of the
government or those acting in its behalf to prosecute all cases to
their termination without oppressive, capricious and vexatious
delay. The Constitution does not say that the right to a speedy
trial may be availed of only where the prosecution for crime is
commenced and undertaken by the fiscal. It does not exclude
from its operation cases commenced by private individuals.
Where once a person is prosecuted criminally, he is entitled to a
speedy trial, irrespective of the nature of the offense or the
manner in which it is authorized to be commenced. In any event,
even the actuations of the fiscal himself in this case is not entirely
free from criticism. From October 27, 1932, when the first
complaint was filed in the justice of the peace court of San
Fernando, to February 2, 1934, when the provincial fiscal filed his
information with the justice of the peace of Mexico, one year,
three months and six days transpired; and from April 27, 1933,
when the second criminal complaint was dismissed by the justice
of the peace of Mexico, to February 2, 1934, nine months and six
days elapsed. The investigation following the fourth arrest, made
after the fiscal had secured a reinvestigation of the case, appears
also to have dragged on for about a year. There obviously has
been a delay, and considering the antecedent facts and
circumstances within the knowledge of the fiscal, the delay may
not at all be regarded as permissible. In Kalaw vs. Apostol, supra,
we observed that the prosecuting officer is in charge of and has
under his direction and control all prosecutions for public offenses
(secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his
duty to see that criminal cases are heard without vexatious,
capricious and oppressive delays so that the courts of justice may
dispose of them on the merits and determine whether the
accused is guilty or not. This is as clear an admonition as could
be made. an accused person is entitled to a trial at the earliest
opportunity. (Sutherland on the Constitution, p. 664; United
States vs. Fox, 3 Mont., 512.) He cannot be oppressed by
delaying the commencement of trial for an unreasonable length
of time. If the proceedings pending trial are deferred, the trial itself
is necessarily delayed. It is not to be supposed, of course, that
the Constitution intends to remove from the prosecution every
reasonable opportunity to prepare for trial. Impossibilities cannot
be expected or extraordinary efforts required on the part of the
prosecutor or the court. As stated by the Supreme Court of the
United States, "The right of a speedy trial is necessarily relative.
It is consistent with delays and depends upon circumstances. It
secures rights to a defendant. It does preclude the rights of public
justice." (Beavers vs. Haubert [1905], 198 U. S. 86; 25 S. Ct.,
573; 49 Law. ed., 950, 954.)
It may be true, as seems admitted by counsel for the
intervenors, in paragraph 8, page 3 of his brief, that the delay was
due to "the efforts towards reaching an amicable extrajudicial
compromise," but this fact, we think, casts doubt instead upon the
motive which led the intervenors to bring criminal action against
the petitioner. The petitioner claims that the intention of the
intervenors was to press upon settlement, with the continuous
threat of criminal prosecution, notwithstanding the probate of the
will alleged to have been falsified. Argument of counsel for the
petitioner in this regard is not without justification. Thus after the
filing of the second complaint with the justice of the peace court
of Mexico, complainant herself, as we have seen, asked for
dismissal of the complaint, on the ground that "el acusado tenia
la salud bastante delicada," and, apparently because of failure to
arrive at any settlement, she decided to renew her complaint.
Counsel for the intervenors contend — and the
contention is sustained by the Court of Appeals — that the
petitioner did not complain heretofore of the denial of his
constitutional right to a speedy trial. This is a mistake. When the
petitioner, for the fourth time, was ordered arrested by the Court
of First Instance of Pampanga, he moved for reconsideration of
the order of arrest, alleging, among other things, "Que por estas
continuas acusaciones e investigaciones, el acusado
compareciente no obsdtante su mal estado de salud desde el
año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de
humiliaciones y zozobras y ha incurrido en enormes gastos y
molestias y ha desatendido su quebrantada salud." The
foregoing allegation was inserted on page 6 of the amended
petition for certiorari presented to the Court of Appeals. The
constitutional issue also appears to have been actually raised
and considered in the Court of Appeals. In the majority opinion of
that court, it is stated:
"Upon the foregoing facts, counsel for
the petitioner submits for the consideration of this
court the following questions of law: First, that the
respondent court acted arbitrarily and with abuse
of its authority, with serious damage and
prejudice to the rights and interests of the
petitioner, in allowing that the latter be
prosecuted and arrested for the fourth time, and
that he be subjected, also for the fourth time, to a
preliminary investigation for the same offense,
thereby converting the court into an instrument of
oppression and vengeance on the pat of the
alleged offended parties, Rosario Basa et al.;. .
.."
And in the dissenting opinion, we find the following
opening paragraph:
"We cannot join in a decision declining
to stop a prosecution that has dragged for about
five years and caused the arrest on four different
occasions of a law abiding citizen for the alleged
offense of falsifying a will that years before, had
been declared genuine and valid by a court of
competent jurisdiction."
From the view we take of the instant case, the petitioner
is entitled to have the criminal proceedings against him quashed.
The judgment of the Court of Appeals is hereby reversed, without
pronouncement regarding costs. So ordered.
Avanceña, C.J., Villa-Real, Imperial,
Diaz and Concepcion, JJ., concur.
||| (Mercado v. Santos, G.R. No. 45629,