1 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Guevara v. Guevara et. al.

Concepcion, J.: Quickie: Son v. alleged natural child. Dad executed a will in 1931, but in 1933, Dad executed a deed of sale in favor of son Ernesto, which in effect had the WHOLE parcel of land registered in Ernestos name. 15 days before the issuance of the title in favor of the son, Dad died, but his will was not filed for probate. Rosario, alleged recognized natural child of Dad, brought suit against Ernesto to recover the land as to the portion that should correspond to her legitime. In that case, Supreme Court ordered the will be presented for probate. As such Rosario instituted the probate proceedings, to which Ernesto appeared and opposed. Super habang lokohang palitan pleadings spanning 2 years. Succession Doctrine: Probate of a will is a proceeding in rem. It cannot be dispensed with and substituted by another proceeding, judicial or extrajudicial, without offending public policy. It is mandatory as no will shall pass either real or personal property unless proved and allowed in accordance with the Rules. It is imprescriptible, because it is required by public policy and the state could not have intended to defeat the same by applying thereto the statute of limitation of actions SpecPro Doctrine (under the syllabus who and when to file): It is not without purpose that Rule of Court 77 prescribes that any person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Nature: This is a petition for review by certiorari of a decision of the Court of Appeals. Facts: August 26, 1931 Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will, distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. o To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widows usufruct. o The balance of the 259 odd hectares he distributed as follows: 100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family expenses; 108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora; 21.6171 hectares to mi hija natural reconocida Rosario Guevara. Ernesto Guevara (son) was appointed executor without bond.

98 Phil 249 (1956)

July 12, 1933 Victorino executed a deed of sale in favor of Ernesto, conveying to the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933. Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate , brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime. The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor but upon certiorari, the Supreme Court modified the judgment in December, 1943: o AFFIRMED: 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 latters assumption of the obligation to pay all the debts of the deceased, o REVERSED AND SET ASIDE: the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara; the parties are hereby ordered to present the WILL 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. o 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 herein 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. Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorneys lien. January 31, 1946 Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; (b) that whatever right to probate the parties may have has already prescribed; and, (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased.

2 DE LA CERNA SPECPRO DIGESTS 2011 By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; but upon motion of reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered the petition dismissed on the ground that Rosario Guevaras peti tion did not ask for the probate in toto of the will, contrary to the order of the Supreme Court ; that her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; and that her action for judicial declaration of acknowledgment had likewise prescribed. An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; the former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below. The dispositive part of the decision of the Court of Appeals reads as follows: The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances. 1) 2) 3) Ratio: 1) Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion to dismiss on the grounds of unreasonable delay, failure to prosecute, and because the Record on Appeal was filed beyond extension CA denied said motion to dismiss: Unreasonable delay [court enumerated list of memos, appeals, etc. which spanned from 1947-1949. Adik!]: After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. It is urged by Petitioner herein that Respondents appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because of noncompliance with the rules, because the record on appeal was filed after the lapse of the reglementary period, because there has been an unprecedented delay in the filing of a satisfactory record on appeal; and that the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court. 2) Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of Pangasinan? YES. Unreasonable delay was imputable to both parties, not just the respondents. Did the Court of Appeals have jurisdiction to entertain said appeal? YES. There are questions of fact. Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations? NO! AMIN | CHA | JANZ | KRIZEL | VIEN (a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. (b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion. Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court o Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Rules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected. Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant. The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for

Issues/Held:

3)

3 DE LA CERNA SPECPRO DIGESTS 2011 probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945 CA: We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedents will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. o In holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owners right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. o It is not without purpose that Rule of Court 77 prescribes that any person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. o In re Humes Estate: Section 1317 declares If the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court must admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations. AMIN | CHA | JANZ | KRIZEL | VIEN The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts.

The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph 10 of the original petition, that the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will is concerned, does not justify the finding that the probate would be pointless. o What is alleged is a partial revocation, only as to the parcel of land affected; but as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate only for the purposes of her acknowledgment as natural child in said will, constitutes an averment that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate. Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but

4 DE LA CERNA SPECPRO DIGESTS 2011 specially the express desires of the testator; chan roblesvirtualawlibraryand that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them. Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non-intervention in the case, because the order of publication of the petition only called for those interested to appear to contest the allowance and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted. 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 testators 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 revindicacion or partition. AMIN | CHA | JANZ | KRIZEL | VIEN

We are fully in accord with these findings which we adopt as ours. In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner. Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, JJ., concur.

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Duran et. al v. Duran

Bengzon J.P, J.: Quickie: Pio Duran died. One of the surviving brothers, Cipriano Duran executed a public instrument assigning and renouncing his hereditary rights to the decedent's estate in favor of Josefina Duran. Later on, he filed a petition for intestate proceedings. Opposition says Cipriano is not an interested person because of the deed of transfer and renunciation of the estate. The Court said that the assignment by one heir of his share in the estate to a co- heir does not need court approval to be effective as between the parties. The assignment is deemed valid and effective against him, so that he is left without that "interest" in the estate required to petite for settlement proceedings. Facts: Pio Duran died without testament Subsequent to his death, on June 2, 1962, Cipriano Duran, one of the surviving brothers, executed a public instrument assigning and renouncing his hereditary rights to the decedent's estate in favor of Josefina Duran, for the consideration of P2,500.00 Cipriano Duran filed in the Court of First Instance of Albay a petition for intestate proceedings to settle Pio Duran's estate, further asking that he be named the administrator. Josefina Duran opposed: petitioner is not an "interested person" in the estate, in view of the deed of transfer and renunciation the estate Still later, another brother of the decedent, Miguel Duran, filed on September 14, 1963, a petition to be joined as co-petitioner of Cipriano Argument of appellants: the deed of assignment executed by Cipriano did not operate to render him a person without interest in the estate. : an assignment by one heir of his share in the estate to a co-heir amounts to a partition needing approval by the settlement court to be effective; and that the assigning heir does not lose his status as a person interested in the estate, even after said assignment is approved by the court. Issue/Held: WON Cipriano still has interest in the estate which is required for a petition for settlement proceedings No. Ratio: In the present case, however, the assignment took place when no settlement proceedings was pending. The properties subject matter of the assignment were not under the jurisdiction of a settlement court. Allowing that the assignment must be deemed a partition as between the assignor and assignee, the same does not need court approval to be effective as between the parties. An extrajudicial partition is valid as between the participants even if the requisites of Sec. 1, Rule 74 for extrajudicial partition are not followed, since said requisites are for purposes of binding creditors and non-participating heirs only (Hernandez v. Andal, 78 Phil. 196).

20 SCRA 379 (1967)

Should it be contended that said partition was attended with fraud, lesion or inadequacy of price, the remedy is to rescind or to annul the same in an action for that purpose. And in the meanwhile, assigning heir cannot initiate a settlement proceedings, for until the deed of assignment is annulled or rescinded, it is deemed valid and effective against him, so that he is left without that "interest" in the estate required to petite for settlement proceedings.

Side issue: Anent appellant Miguel Duran, he sought in his petition below to "join petitioner Cipriano Duran as co-petitioner in the latter's petition . . . and incorporates herein by adoption all the allegations made in said petition." The same, therefore, amounted to a petition to intervene in the settlement proceedings. Since there was really no settlement proceedings in the first place, the petition to intervene must be denied.

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Salazar v. CFI, et. al.

Imperial, J. Quickie: Son applied for probate of moms will. Sabina came to court applying for probate of another will supposedly by the same mom. Son asking is it possible that court has jurisdiction over 2nd will case even when theres lack of fees paid. Court said postponement of payment of fees does not deprive it of jurisdiction. When it set the hearings of the 2nd will case, it merely made a consolidation of the cases. Court of First Instance acquires jurisdiction to probate a will when it is shown by evidence before it: (1) That a person has died leaving a will; (2) in the case of a resident of this country, that he died in the province where the court exercises territorial jurisdiction; (3) in the case of a nonresident, that he has left a estate in the province where the court is situated, and (4) that the testament or last will of the deceased has been delivered to the court and is in the possession thereof. Nature: Petition for certiorari Facts: The petitioner instituted special proceeding No. 3109 in the court of First Instance of Laguna and, in the petition filed by him, prayed for the probate of the will allegedly made on May 13, 1924, by his deceased mother Damiana Capistrano. The petition was opposed by the respondent Sabina Rivera, who filed a pleading entitled "Opposition and Counter-Petition." In her pleading the respondent, after opposing the probate of said will for the reasons stated therein, prayed for the probate of the will of the deceased alleged made on May 11, 1930, copy of which was attached thereto, and for the issuance, to that effect, of the order setting the hearing thereof and directing such publications as required by law. The court denied the motion for publication and ordered the respondent to institute another proceeding and apply separately for the probate of the alleged will. The respondent filed a motion for reconsideration and the court, on March 31, 19937, issued an order setting aside the former one and directing that the will presented by the respondent be set for hearing, that the publications required by law be made and that said will be heard jointly with the will presented by the petitioner in the same proceeding instituted by the latter. Sometime later, the court ordered that the expenses for the publications made in the newspapers be defrayed by the respondent. The petitioner filed two motions for reconsideration which were denied and, finally, instituted this certiorari proceeding. In order that the hearing and publications ordered by the court may be carried out, the respondent, on July 20, 1937, deposited P24 and filed the original of the will the probate of which had been sought by her. Issue/ Held: WON the court acquired jurisdiction to take cognizance of the the counterpetition for the probate of the second will- YES

64 Phil 785 (1937)

Ratio: The jurisdiction of the Courts of First Instance in probate matters is determined in the following sections of the Code of Civil Procedure: o SEC. 599. Jurisdiction. Courts of First Instance shall have jurisdiction in all matters relating to the settlement of estate and probate of wills of deceased persons, the appointment and removal of guardians and trustees, and the powers, duties, and rights of guardians and wards, trustees, and cestuis que trust. This jurisdiction shall be called probate jurisdicton. o SEC. 600. Where resident's estate settled. If an inhabitant of the Philippine Islands dies, whether a citizen or alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death. o SEC. 601. Where nonresident's estate settled. If a person resided out of the Philippine Islands at the time of his death, his will shall be allowed and recorded, and letters testamentary or of administration shall be granted in the Court of First Instance of any province in which he had estate. o 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. o 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. o SEC. 630. Court to appoint hearing on will. When a will is delivered to a court having jurisdiction of the same, the court shall appoint a time and place when all concerned may appear to contest the allowance of the will, and shall cause public notice thereof to be given by publication in such newspapers as the court directs general circulation in the province, three weeks successively, previous to the time appointed, and no will shall be allowed until such notice has been given. At the hearing all testimony shall be taken under oath, reduced to writing and signed by the witnesses. Under the foregoing provisions, a Court of First Instance acquires jurisdiction to probate a will when it is shown by evidence before it: (1) That a person has died leaving a will; (2) in the case of a resident of this country, that he died in the province where the court exercises territorial jurisdiction; (3) in the case of a nonresident, that he has left a estate in the province where the court is situated, and (4) that the testament or last will of the deceased has been delivered to the court and is in the possession thereof. The law is silent as to the specific manner of bringing the jurisdictional allegations before the court but practice and jurisprudence have established that they should be made in the form of an application and filed with the original of the will attached

7 DE LA CERNA SPECPRO DIGESTS 2011 thereto. It has been the practice in some courts to permit attachment of a mere copy of the will to the application, without prejudice to producing the original thereof at the hearing or when the court so requires. This precaution has been adapted by some attorneys to forestall its disappearance, which has taken place in certain cases. According to the facts alleged and admitted by the parties, it is evident that the court has acquired jurisdiction to probate the second will, in view of the presence of all the jurisdictional facts above-stated. The respondent's counter-petition should, in this case, be considered as a petition for the probate of the second will, the original of which was filed by her on July 20, 1937. The payment of the fees of the clerk of court for all services to be rendered by him in connection with the probate of the second will and for the successive proceedings to be conducted and others to be issued, in accordance with section 788, as amended, is not jurisdiction in the sense that its omission does not deprive the court of its authority to proceed with the probate of a will, as expressly provided for by section 630. It is the inevitable duty of the court, when a will is presented to it, to appoint hearing for its allowance and to cause notice thereof to be given by publication. The duty imposed by said section is imperative and noncompliance therewith would be a mockery at the law and at last will of the testator. Section 785 (a) of the Code of Civil Procedure, as amended recently by Act No. 3250, permits the remission or postponement of the payment of the clerk's fees in cases of poverty, at the discretion of the court, and if this were done in one case and the payment of the fees for filing the application were jurisdictional, is claimed, then the court, in admitting the will to probate and in allowing it, would have acted entirely without jurisdiction. Finally, it should be taken into consideration that the court, in this case, did not exempt the respondents from paying the fees in question but merely failed to make provision therefor. When the court ordered that the second will be set for hearing that publication be made thereof and that said will be heard in the same proceeding jointly with the first will, it merely ordered the consolidation of the two applications and the two hearing on the probate of both wills, instead of conducting separate hearing, undoubtedly because it understood that the form so chosen was the most convenient for the parties and their attorneys. There are three ways of consolidation action or special proceedings where the questions at issue and the parties in interest are the same o in recasting the cases already instituted, conducting only one hearing and rendering only one decision; o when the existing cases are consolidated, only one hearing held and only one decision rendered; and o when, without recasting or consolidating the cases, the principal one is heard, the hearing on the others being suspended until judgment has been rendered in the first case. The court, in the exercise of its sound discretion, may adopt any of these three forms of consolidation whenever in its opinion the proceeding is beneficial to and convenient for the parties. The power so exercised is discretionary. In the case under consideration, the court acquired jurisdiction from the moment the counter-petition was presented and the second will came to its possession and AMIN | CHA | JANZ | KRIZEL | VIEN under its control and, consequently, it likewise had full discretion to order, as it did, the probate thereof in the proceeding already instituted for the purpose of rendering later only one decision. It should furthermore be taken into consideration that the consolidation so ordered was the form most convenient for and beneficial to the parties as well as to the court because if the first will were opposed on the ground that it was revoked by the second will, the best evidence of the revocation would be said second will and once the publications are made, if the second will was executed with the formalities prescribed by law, the court could order the probate thereof, without the necessity of multiplying the proceedings. MANY CASES CITED: in support of the consolidation of special proceedings in the cases where more than one will of a deceased person has been presented: RESOLUTION October 13, 1937 Imperial, J.: It having been decided that the payment of said fees is not jurisdictional, this court, in fact, determined the principal and only question of law raised by the petition and there was no necessity of interpreting said legal provision for the purpose of laying another unnecessary conclusion. In the second motion for reconsideration, however, the attorney for the petitioner asks this court to interpret expressly the phrase "in each proceeding" to determine whether or not the respondent was and is obtained to pay said clerk's fees. If the interpretation asked for is to determine the question of jurisdiction, that is, whether or not the court acquired jurisdiction in issuing its orders appealed from, it has already been done and it was said that the payment of said fees is not jurisdictional. If the interpretation sought to be obtained is for the purpose of having this court decide now whether the respondent should, or should not, pay the clerk's fees, then this court holds that such pronouncement is unnecessary and improper for the following reasons: (1) Because to decide whether or not the petition is meritorious, there is no necessity of determining whether or not the respondent is obliged to pay the clerk's fees, and (2) because it behooves the lower court to decide this question in the first instance and it is improper for this appellate court to exercise the function belonging to the former. In view of the foregoing the second motion for reconsideration is denied.

8 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

In re Estate of Suntay
Padilla, J.: Quickie: Jose Suntay died. He was survived by his children from the first marriage, his child by the 2nd marriage and his surviving widow. Intestate proceedings were commenced and letter of administration were issued. Later, surviving widow petitioned the court for the probate of an alleged last will and testament (1929 will). After filing of the petition but before trial on the petition, the 1929 will got lost. Based accordingly on lack of evidence of proof of loss (or existence) of the will, CFI dismissed the probate proceedings. Widow appealed. SC decided in her favor (prior case) and remanded the case for further proceedings. CFI still ultimately denied the probate. WWII supervened. Upon liberation, son from 2nd marriage allegedly found a second will (1931 will) executed by decedent. It was written in Chinese and was duly probated in Amoy District Court in China. Son sought its probate in the same CFI or in the alternative, to serve as secondary proof that the 1929 will which he also sought to be probated. CFI dismissed petition and disallowed both wills. HELD: (with specific emphasis on the probate of the 1931 will and on the topic nature of proceedings)~ Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines and such will shall have the same effect as if originally proved and allowed in such court. HOWEVER, the fact that the foreign court is a probate court must be proved. Also, the law of the foreign country on procedure in the probate or allowance of wills must be proved, as well as the legal requirements for the execution of a valid will therein all of these, the petitioners failed to prove. PROBATE PROCEEDINGS ARE PROCEEDINGS IN REM AND FOR THE VALIDITY OF SUCH PROCEEDINGS, PERSONAL NOTICE OR BY PUBLICATION OR BOTH TO ALL INTERESTED PARTIES MUST BE MADE Nature: This is an appeal from a decree of the CFI Bulacan disallowing the alleged will and testament executed in Manila on Nov 1929, and the alleged last will and testament executed in Amoy, China, on Jan 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000. Facts: May 1934: Jose B. Suntay, Filipino citizen and resident of the Philippines, died in Amoy, China, leaving real and personal properties in the Philippines and a house in Amoy, China. He was survived by his children by the first marriage, his child by the second marriage and by Maria, his surviving widow Intestate proceedings were thereafter instituted in the CFI Bulacan. After hearing, letters of administration were issued Later, the surviving widow (Maria) filed a petition in the CFI Bulacan for the probate of an alleged last will and testament claimed to have been executed and signed in the Philippines on Nov 1929 by the late Jose Suntay

95 Phil 500 (1954)

This petition was however denied because of the loss of said will after the filing of the petition and before the hearing thereof, there being insufficient evidence to establish the loss of the said will. According to the witnesses, the will was snatched as it was being delivered to and from one of the witnesses (Go Toh) to the law firm of the lawyer by the children of the 1st marriage (may balibalita kasi na mas malaki ang mamanahin nung 2nd wife and half brother) Maria appealed said order denying the probate of the 1929 will to the SC. The SC ruled in her favor and held that the evidence before the probate court was sufficient to prove the loss of the will. The case was remanded to the CFI Bulacan for the further proceedings. Thus, a commission from the probate court was issued for the taking of the deposition of an attesting witness to the will (Go Toh). Ultimately, however, the probate court still dismissed Marias petition for probate of the 1929 will Then WWII supervened. After liberation, claiming that he had found among the files of his father a will and testament in Chinese characters executed and signed by the deceased on Jan 1931 and that the same was filed, recorded and probated in the Amoy district court, China, Silvino (child by 2nd marriage) filed another petition in the intestate proceedings praying for the probate of the 1929 will executed in the Philippines or of the 1931 will executed in Amoy, China CFI disallowed probate of both wills ~hence, this petition Issues and Held: (1) WON Silvino and his mother Maria are barred (by estoppel and prescription) from asking the probate of either will because of the assignments of their share rights and interest in Joses estate NO. (2) WON sufficient evidence had been presented to establish the provisions of the lost 1929 will NO. (3) WON the probate of the 1931 will, having been probated in Amoy, China, should be allowed NO. Ratio: (1) The validity and legality of such assignments cannot be threshed out in probate proceedings. Probate proceedings are concerned only with the probate of the will and testament executed in the Philippines on 1929 or of the foreign will allegedly executed in Amoy in 1931 and claimed to have been probated in the municipal district court of Amoy, China. As to prescription, the dismissal of the petition for probate of the will in 1938 was no bar to the filing of this petition on 1947, or before the expiration of ten years (2) Section 6, Rule 77, provides: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge,

9 DE LA CERNA SPECPRO DIGESTS 2011 under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. IN THE CASE AT BAR, one witness who testified to the provisions of the lost will was Go Toh, an attesting witness. In his deposition, Go Toh testified that the lost will consisted of 23 sheets, that said lost will complied with all the formal requirements of the law (signed, each and every page, attestation clause, yada yada yada); that he knew the contents of the will written in Spanish although he knew very little of that language. But that all he knows about the contents of the lost will was those revealed to him by Jose Suntay. He did not read the will, only the draft translated into Chinese by Joses attorney. Go Toh's testimony on the provisions of the alleged lost will is hearsay, because he came to know or he learned them from information given him by Jose B. Suntay. Other witnesses also only read a copy or a draft of the will. Others only knew of portions but not the entirety of the dispositions contained therein. More importantly, their accounts as to how they came to read or learn of the contents of the lost will were inconsistent (as to dates, as to place, etc. e.g. one of the witnesses said that she came to read the will on a date which one of the witnesses previously said to be the day the will was snatched). The substantive provisions (as to the proportions of the shares in the estate) are also inconsistent from the testimonies of the witnesses. THUS, granting that there was a will duly executed by Jose B. Suntay and that it was in existence at the time of, and not revoked before, his death, still the testimony of the witnesses alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. (3) As to the will claimed to have been executed in 1931 in Amoy, China, the law on the point in Rule 78. Section 1 of the rule provides: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines. Section 3 provides: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence UNFORTUNATELY for petitioners, there is no proof on these points The unverified answers of the Consul General of the Republic of China on the matters that need to be proved as underscored above are inadmissible because the Consul General does not qualify as an expert on the Chinese law on procedure in probate matters. Consuls are appointed to attend to trade matters. Also, if the same be admitted, the adverse party would be deprived of his right to confront and crossexamine the witness. AMIN | CHA | JANZ | KRIZEL | VIEN Moreover, it appears that the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will. The order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject PROBATE PROCEEDINGS ARE PROCEEDINGS IN REM AND FOR THE VALIDITY OF SUCH PROCEEDINGS, PERSONAL NOTICE OR BY PUBLICATION OR BOTH TO ALL INTERESTED PARTIES MUST BE MADE IN THE CASE AT BAR, the interested parties were known to reside in the Philippines. The evidence shows, however, that no such notice was received by the interested parties FINALLY, the proceedings had in the municipal district court of Amoy, China do not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of this country. PARAS, C.J., dissenting: There is no doubt that Jose B. Suntay while he was still residing in the Philippines, had executed the 1929 will as such was the conclusion of the Supreme Court in its previous decision (Marias appeal to CFIs initial denial of probate of lost 1929 will). Also, that the will was snatched and it has never been produced in court by those who snatched it, and consequently considered lost, is also an established fact under the same prior SC decision. Next, CJ Paras details factual circumstances about the lost 1929 will, the drafts presented as secondary evidence thereof and the testimonies of witnesses as to the contents of the lost will according to him these are sufficient to establish that the will was duly executed not only according to the FORMALITIES of the law but also proves the dispositions of the will substantively. Thus, CJ Paras disagrees with the majority that the requirement of proof from two credible witnesses has NOT been met That the provisions of a lost will must be clearly and distinctly proved by at least two credible witnesses before it can be admitted to probate must receive a liberal construction and its spirit is complied with by holding that it applies only to those provisions which affect the disposition of the testator's property and which are of the substance of the will. The sound rule, however, as we have found it to be, as to the degree of proof required to establish the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof,"

10 DE LA CERNA SPECPRO DIGESTS 2011 to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will." The instrument in controversy having been lost and there not appearing to be any copy of it in existence, it would be equivalent to denying the complainant relief altogether to require her to prove the every terms in which it was conceived. All that could reasonably be required of her under the circumstances could be to show in general terms the disposition which the testator made of his property by the instruments ; that it purported to be his will and was duly attested by the requisite number of witnesses." As to the Allowance and Recording of the will Executed in Amoy, China . Granting that the 1929 will executed in the Philippines is non-existent, the will executed and probated in China should be allowed and recorded in this court. All the formalities of the law in China had been followed in its execution, on account of which it was duly probated in the Amoy District Court. There is no cogent reason, therefore, why it should not be admitted and recorded in this jurisdiction. The said will in Chinese characters is presented as an alternate in case the will executed in the Philippines would not be allowed to probate, or as a corroborative evidence that the will has been duly executed in the Philippines by Jose B. Suntay. Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines and administration of estate thereunder. Section 1 provides: "Wills proved and allowed in the United States, or any state or territory thereof, or in foreign country, according to the laws of such state, territory, or country, may be allowed, filed, and recorded by the proper Court of First Instance in the Philippines." Section 2 of the same rule provides: "When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such 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." This court has delved deep into the evidence adduced during the hearing. All the facts lead to the inevitable conclusion that Jose B. Suntay executed the second will in Amoy, China, which has been duly probated in Amoy District Court,-a corroborative evidence that the testator really executed the will. The next question is whether or not the said will should be allowed and recorded in this jurisdiction. Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded in the CFI of the province in which the testator has real or personal estate on which such will may operate; but the proof of the authenticity of a will executed in a foreign country must be duly "authenticated". Such authentication, considered as a foreign judicial record, requires the attestation of the clerk or of the legal keeper of the records with the seal of the court annexed, if there be a seal, together with a certificate of the chief judge or presiding magistrate that the signature of either of the functionaries attesting the will is genuine, and, finally, the certification of the authenticity of the signature of such judge or presiding magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United States in such foreign country The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. AMIN | CHA | JANZ | KRIZEL | VIEN Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly done in accordance with the law of the Republic of China on the matter, is it necessary to prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance and recording of said will? The answer is in the affirmative. AND IN THE CASE AT BAR, the petitioner has presented in evidence the certification of the Chinese Consul General of the existence of the law in China relative to the execution and probate of the will. Contrary to majoritys position, that evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the Rules of Court RESOLUTION (5 November 1954) PADILLA, J.: MR denied. The claim of the appellant (Maria and son) that this Court already ordered the probate of the will the first time the case went up to the SC is UNTENABLE. If the SC did order such a thing, there would have been no further and subsequent proceedings in the case. The appellant advances the postulate that the decision of this Court in the prior case constitutes res judicata as to the lost of the prior will NO! The only point decided in that case is that "the evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities." That is all that was decided The appellant argues that Rule 77 should not have been applied to the case but the provisions of section 623 of the Code of Civil Procedure (Act No. 190), for the reason that this case had been commenced before the Rules of Court took effect Even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court." Both the appellant and the dissenting opinion suffer from an infirmity born of a mistaken premise that all the conclusions and pronouncements made by the probate court in the first decree which allowed the probate of the lost will of the late Jose B. Suntay must be accepted by this Court This is an error. It must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the Court of Appeals on questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court, because the amount involved in the controversy exceeds P50,000, and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the will had not been established clearly and distinctly by at least two credible witnesses and that conclusion is unassailable because it is solidly based on the established facts and in accordance with law.

11 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Abut et. al. v. Abut et. al.

Makalintal, J. Quickie: Original petitioner died during the pendency of the probate proceedings. Sister of the original petitioner filed an amended petition seeking to substitute the original petitioner and prayed that letters of administration be issued in her favour. CFI denied the motion on the ground that the demise of the original petitioner divested the court of jurisdiction and the amended petition requires a new publication in order to invest the court with jurisdiction. HELD: The jurisdiction of the court became vested upon the filing of the original petition and upon compliance with Sections 3 and 4 of Rule 76. Jurisdiction of the court once acquired continues until the termination of the case, and remains unaffected by subsequent events. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. Nature: Appeal from an order of the CFI Misamis Oriental Facts: GENEROSO Abut, one of the children of CIPRIANO Abut by his 2 nd marriage, is named as executor in a will allegedly executed by CIPRIPRIANO. He filed a petition before CFI praying that after due notice and hearing the said will be approved and allowed and that letters testamentary issue in his favor. CFI motu proprio set the petition for hearing and further directed compliance with Secs. 3 and 4 of Rule 76. These procedural steps admittedly took place. Opposition to the petition was filed by the children of Cipriano by his 1st marriage: FELIPE Abut, PRESENTACION de Rodriguez and ABSOLUTO Abut. During the pendency of the case but before the CFI could even start the formal hearing of the petition, which had been delayed by several postponements, GENEROSO Abut, died. GAVINA Abut, a sister of Generoso and an heir and devisee under the will of the Cipriano, asked the CFI to substitute her in lieu of Generoso and to admit an amended petition wherein she prayed that the probate of the will be allowed and that letters of administration with the will annexed be issued in her favor. CFI denied Gavinas motion o GAVINA seeks the admission of the amended petition in which she substitutes for the original petitioner who died after his original petition was filed, published and the Court had taken jurisdiction thereof. o In the original petition, GENEROSO appears to have been named executor of the will; that he was in possession and custody of the Ciprianos will; and that he sought to be named executor. o In the amended petition, GAVINA alleges that the will was delivered to her by GENEROSO Abut before his death and that it is now in her custody and possession, and she prays that she be appointed administratrix of the estate o

45 SCRA 326 (1972)

Considering the amendments and the fact that publication of the petition is a jurisdictional matter intended to inform whomsoever may be interested in said petition and to afford him or her an opportunity to assert his or her rights, the original petition should be without prejudice to the filing of another petition pursuant to the requirements of the RoC.

Issue/Held: WON the probate court correctly dismissed the petition simply because the original petitioner - who was the executor named in the will sought to be probated - died before the petition could be heard and/or terminated. NO Ratio: The jurisdiction of the court became vested upon the filing of the original petition and upon compliance with Sections 3 and 4 of Rule 76. A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court's jurisdiction extends to all persons interested in said will or in the settlement of the estate of the deceased. o The fact that the amended petition named additional heirs not included in the original petition did not require that notice of the amended petition be published anew. o All that Section 4 of Rule 76 provides is that those heirs be notified of the hearing for the probate of the will, either by mail or personally. Perez vs. Perez - Thus it appears that such "no notice" argument has no legal foundation. At any rate the omission, if any, did not affect the jurisdiction of the court; it constituted a mere procedural error that may or may not be the basis of reversal (Jocson vs. Nable). Indeed, this Tribunal has ruled that the court acquires jurisdiction over all persons interested in the estate through the publication of the petition in the newspapers (In re Estate of Johnson; Jocson vs. Nable) - which in this case admittedly took place. Service of notice on individual heirs or legatees or devisees is a matter of procedural convenience, not jurisdictional requisite. So much so that even if the names of some legatees or heirs had been omitted from the petition for allowance of the will - and therefore were not advised - the decree allowing the will does not ipso facto become void for want of jurisdiction Jurisdiction of the court once acquired continues until the termination of the case, and remains unaffected by subsequent events. The court below erred in holding that it was divested of jurisdiction just because the original petitioner died before the petition could be formally heard. Parties who could have come in and opposed the original petition, as herein appellees did, could still come in and oppose the amended petition, having already been notified of the pendency of the proceeding by the publication of the notice thereof. The admission of the amended petition, of course, does not mean that Gavinas prayer that she be appointed administratrix with the will annexed is necessarily meritorious. It simply recognizes that since the lower court has acquired

12 DE LA CERNA SPECPRO DIGESTS 2011 jurisdiction over the res, such jurisdiction continues until the termination of the case. The question of whether or not Gavina Abut should be appointed administratrix must be decided on the basis of the facts to be presented and after the will is proved and allowed, as provided in Section 6 of Rule 78. AMIN | CHA | JANZ | KRIZEL | VIEN

13 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

R-Infante de Aranz et. al. v. Garing et. al.

Padilla, J.: Quickie: Joaquina v. Joaquin (creative sa names e.). Joaquina et. al. were saying that they werent giving notices with regard to the probate of the will of the decease d, and thus, they should be given 10 days within which to file their opposition. SC granted petition in accordance with Sec. 4 Rule 76 Nature: This is a petition for review on certiorari of the decision of the Court of Appeals, dated 13 January 1987, in CA-G.R. SP No. 09622, entitled "Joaquina R-Infante de Aranz, et al., petitioners vs. Hon. Nicolas Galing, etc., et al., respondents," dismissing petitioners' petition for certiorari and prohibition as-, sailing the orders of the Regional Trial Court of Pasig, Branch 166, dated 12 May 1986 and 30 May 1986, respectively, in Sp. Proc. No. 9995, entitled, "In the Matter of Petition for Approval of the Last Will and Testament of Montserrat R-Infante y G-Pola Joaquin R. Infante, Petitioner. Facts: 3 March 1986, private respondent Joaquin R-Infante filed with the Regional Trial Court of Pasig, Branch 166, a petition for the probate and allowance of the last will and testament of the late Montserrat R-Infante y G-Pola o The petition specified the names and addresses of herein petitioners as legatees and devisees1 12 March 1986 the probate court issued an order setting for hearing on 5 May 1986 at 8:30 o'clock in the morning o
1

161 SCRA 628

Said order was published in the "Nueva Era" A newspaper of general circulation in Metro Manila once a week for three (3) consecutive weeks. On the date of the hearing, no oppositor appeared. o The hearing was then reset to 12 May 1986, on which date, the probate court issued the following order: There being no opposition to this instant case, as prayed for, the oner to-receive Branch Clerk of Court is hereby designated Co evidence ex-parte of the petitioner. On the same day (12 May 1986), private respondent presented his evidence ex-parte and placed Arturo Arceo one of the testamentary witnesses, on the witness stand. During the proceedings, private respondent was appointed executor. On 14 May 1986, petitioners filed a motion for reconsideration of the order of 12 May 1986 alleging that, as named legatees, no notices were sent to them as required by Sec. 4, Rule 76 of the Rules of Court and they prayed that they be given a period of ten (10) days within which to file their opposition to the probate of the will. 30 May 1986 the probate court, acting on the opposition of private respondent and the reply thereto of petitioners, issued an order denying petitioners motion for reconsideration. o

Joaquina R-Infante Roxas de Aranz residing at No. 86 10th St., New Manila, Quezon City, Metro Manila;

Issue/Held: W/N CA erred in holding that personal notice of probate proceedings to the known legatees and devisees is not a jurisdictional requirement in the probate of a will. YES. Contrary to the holding of the Court of Appeals that the requirement of notice on individual heirs, legatees and devisees is merely a matter of procedural convenience to better satisfy in some instances the requirements of due process, petitioners allege that under Sec. 4 of Rule 76 of the Rules of Court, said requirement of the law is mandatory and its omission constitutes a reversible error for being constitutive of grave abuse of discretion. Ratio: Sec. 4, Rule 76 of the Rules of Court reads: SEC. 4. Heirs, devisees, legatees, and executors to be notified by mail or personally. The court shag 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 resident in the Philippines at their places of residence, and deposited in the post office with the postage thereon prepaid at least twenty (20) days before the hearing, if such places of residence be known. A copy of the notice must in like manner be mailed to the person named as executor, if he be not, the petitioner; also, to any person named as co-executor not petitioning, if their places of residence be known. Personal service of copies of the notice at least ten (10) days before the day of hearing shall be equivalent to mailing. It is clear from the aforecited rule that notice of the time and place of the hearing for the allowance of a will shall be forwarded to the designated or

Antonio R-Infante Roxas residing at #91 Cambridge, North Forbes, Makati, Metro Manila; Carlos R-Infante Roxas residing at #46 Washington St., Greenhills, San Juan, Metro Manila; Mercedes R-Infante Roxas de Lednicky residing at #386 P. Guevarra St., San Juan, Metro Manila; Alfredo R-Infante Roxas residing at #27 A Scout Tobias St., Quezon City, Metro Manila; Teresita R-Infante Roxas residing at #121 9th Street, New Manila, Quezon City, Metro Manila; Ramon R-Infante Roxas residing at #27 B Scout Tobias St., Quezon City, Metro Manila; Florencia R-Infante Roxas de Diaz residing at Calle Sancho Davila, 13-19-D, Madrid, 28028 Spain; Martin R-Infante Roxas residing at #2 Bongavilla St., Cubao, Quezon City, Metro Manila; Jose R-Infante Link residing at 174R-Pascual St., San Juan, Metro Manila; Joaquin R-Infante Campbell C/O Pilar Campbell, 15 Briones, Makati, Metro Marta. 3

14 DE LA CERNA SPECPRO DIGESTS 2011 other known heirs, legatees, and devisees residing in the Philippines at their places of residence, if such places of residence be known. There is no question that the residences of herein petitioners legatees and devisees were known to the probate court. The petition for the allowance of the wig itself indicated the names and addresses of the legatees and devisees of the testator. But despite such knowledge, the probate court did not cause copies of the notice to be sent to petitioners. The requirement of the law for the allowance of the will was not satisfied by mere publication of the notice of hearing for three (3) weeks in a newspaper of general circulation in the province. In Re: Testate Estate of Suntay, 10 the Court, speaking thru Mr. Justice Sabino Padilla, said: ... It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t.s.n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened to a deposition or to a perpetuation of testimony, and even if it were so it does not measure or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. xxx xxx xxx ... In view thereof, the will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent court of court. WHEREFORE, the decision of the Court of Appeals dated 13 January 1987 is hereby ANNULLED and SET ASIDE. The case is hereby ordered remanded to the Regional Trial Court of Pasig for further proceedings in accordance with this decision. No costs. SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur. AMIN | CHA | JANZ | KRIZEL | VIEN

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Basa v. Mercado
Goddard, J.: Quickie: motion to reopen the administration proceedings because there was an alleged failure to comply with the requirements as to the publication of the notice of hearing. They contended that the hearing took place only twenty-one days after the date of first publication instead of three full weeks. The Court held that the first publication of the notice need not be made 21 days before the day appointed for the hearing. Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was a newspaper of general circulation as contemplated by the law. The Court held that Ing Katipunan is a newspaper of general circulation in view of the fact that it is published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga." Facts: Hon. Hermogenes Reyes, Judge of Pampanga CFI, allowed and probated the last will and testament of Ines Basa, decedent. The same judge also approved the account of the administrator of the estate, declared him the only heir and closed the administration proceedings. Joaquin Basa, et al., filed a motion to reopen the proceedings, alleging that the court lacked jurisdiction because there was failure to comply with the requirements as to the publication of the notice of hearing. o They contended that the hearing took place only twenty-one days after the date of first publication instead of three full weeks. o Moreover, they questioned whether Ing Katipunan, the newspaper where the notice was published was a newspaper of general circulation as contemplated by the law. Issues/Held: 1) 2) WON there was compliance with the publications requirement Yes. WON Ing Katipunan is a newspaper of general circulation Yes.

61 Phil 632 (1935)

2) Ing Katipunan is a newspaper of general circulation in view of the fact that it is
published for the dissemination of local news and general information; that it has a bona fide subscription list of paying subscribers; that it is published at regular intervals and that the trial court ordered the publication to be made in Ing Katipunan precisely because it was a "newspaper of general circulation in the Province of Pampanga." Furthermore no attempt has been made to prove that it was a newspaper devoted to the interests or published for the entertainment of a particular class, profession, trade, calling, race or religious denomination. The fact that there is another paper published in Pampanga that has a few more subscribers (72 to be exact) and that certain Manila dailies also have a larger circulation in that province is unimportant. The law does not require that publication of the notice, referred to in the Code of Civil Procedure, should be made in the newspaper with the largest numbers is necessary to constitute a newspaper of general circulation.

Ratio: 1) The language used in section 630 of the Code of Civil Procedure does not mean that the notice, referred to therein, should be published for three full weeks before the date set for the hearing of the will.

In other words, the first publication of the notice need not be made 21 days before the day appointed for the hearing.

16 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Cayetano v. Leonides et. al.

Gutierrez, Jr., J. Quickie: Adoracion C. Campos died, leaving Hermogenes Campos (father) and her sisters, Nenita Paguia, Remedios Lopez, and Marieta Medina as the surviving heirs. As the only compulsory heir is Hermogenes, he executed an Affidavit of Adjudication.Later that same year, Nenita filed a petition for reprobate of a will, alleging among others that Adoracion was an American citizen and that the will was executed in teh US. Adoracion died in Manila while temporarily residing in Malate.While this case was still pending, Hermogenes died and left a will, appointing Polly Cayetano as the executrix. Hence, this case. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issues. In this case, it was sufficiently established that Adoracion was an American citizen and the law which governs her will is the law of Pennsylvania, USA, which is the national law of the decedent. It is a settled rule that as regards the intrinsic validity of the provisions of the will, the national law of the decedent must apply.As to the issue of jurisdiction --The settlement of estate of Adoracion Campos was correctly filed with the CFI of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, USA and not a usual resident of Cavite. Nature: petition for review on certiorari Facts: On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the deceased Adoracion Campos. Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as administratrix of the estate of the deceased testatrix.

129 SCRA 522 (1984)

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last will and testament on July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him. Respondent judge issued an order: WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed Administratrix of the estate Another manifestation was filed by the petitioner confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed. On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case. The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980. On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. The hearing of May 29, 1980 was re-set by the court. When the case was called for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order, respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

17 DE LA CERNA SPECPRO DIGESTS 2011 Meanwhile, petitioner Hermogenes Campos died and left a will, which, incidentally has been questioned by the respondent, his children and forced heirs as, on its face, patently null and void (BUHAY NGA NAMAN OO, HAHA), and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was granted by the court. AMIN | CHA | JANZ | KRIZEL | VIEN The law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run counter to the specific provisions of Philippine Law. It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply- Bellis v. Bellis As regards the alleged absence of notice of hearing for the petition for relief, the records will bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a mere notice of hearing. Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. RULE 73, SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the want of jurisdiction appears on the record. Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.

Issue/ Held: WON the respondent judge acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will- NO WON the provisions of the will are valid- YES Ratio: No proof was adduced to support petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, 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. (Maninang vs. Court of Appeals, 114 SCRA 478). Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide: o Article 16 par. (2) -However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. o Art. 1039. - Capacity to succeed is governed by the law of the nation of the decedent.

18 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Fernandez v. Tantoco
Street, J. Quickie: BASILIA died without issue, leaving a last will and testament she executed at her deathbed. Parish priest, Fr. Fernandez, was appointed executor, who, shortly after decedents death sought probate of the will. BASILIAs brothers and nephews opposed the probate. Fr. Fernandez presented the three subscribing witnesses to BASILIAs will. They, however, gave inconsistent accounts of what happened during the execution of the will. CFI judge hence disallowed probate. CFI reversed. HELD: In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to participate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney, being conversant with the requisites of the proper execution of the instrument, is more likely to become fixed on details; and he is more likely than other persons to retain those incidents in his memory. ALSO, in case of opposition to the probate of the will, the proponent is legally bound to introduce all of the subscribing witnesses, if available. Attesting witnesses to a will, therefore, are forced witnesses so far as the proponent is concerned, BUT the proponent is not bound by their testimony to the same extent that a litigant is bound by the testimony of witnesses introduced in ordinary course. Thus, the proponent of a will may still avail himself of other proof to establish the instrument, even contrary to the testimony of some of the subscribing witnesses, or all of them. IN THE CASE AT BAR, a prima facie case for the establishment of the document was made out when it appeared that the instrument itself was properly drawn and attested and that all of the signatures thereto are authentic. These facts raise a presumption of regularity; and upon those facts alone the will should, be admitted to probate in the absence of proof showing that some fatal irregularity occurred. And such irregularity must be proved by a preponderance of the evidence before probate can be denied. Nature: This is an appeal from an order of the CFI Bulacan, denying probate of the will of Basilia Tantoco, deceased. Facts: On Sept 1925, BASILIA Tantoco, aged 62, executed an instrument purporting to be her will, she being at the time a patient in the San Juan de Dios Hospital. Her death occurred a few days after the will was executed It appears that the testatrix BASILIA was single and had no force heirs. Years prior to her death, she had observed a need of school facilities in Malolos; and, moved by charitable impulses, she had dedicated a building and the lot upon which it stood to school purposes. She provided in her will that the property referred to should be delivered to the parish priest for certain religious uses and for the assistance of a catholic school in Malolos, to be conducted by the authority of the catholic church under the administration of the priest. This item constitutes one of the principal clauses of the will

49 Phil 380 (1926)

Thereafter, application for probate was made by Father Vicente Fernandez, parish priest of Malolos. Opposition to probate was made by three brothers and a nephew of the deceased At the time set for the submission of proof with respect to the execution of the will, Father Vicente introduced the three attesting witnesses to the instrument, namely, Vicente Platon, Fidel Macapugay, and Placido Suarez, as well as Aurea Gaspar, sisterin-law of the deceased who had been in attendance upon her at the hospital Vicente Platon, an attorney of Malolos, has done legal services for the testatrix for many years. He testified that about the year 1910, he wrote a will for her containing the same substantial disposition with respect to the property above-mentioned as is found in the contested instrument. A codicil to the same will was later executed by the testratix with the assistance and on the advice of Platon. According to Platon, when BASILIAs final illness came upon her, she expressed a desire to make some further changes in her will, and Platon therefore redrafted the entire document and carried it to the hospital for execution by her Sept 1925. Platon thereafter invited BASILIAs attending physician, Dr. Jacinto to act as one of the subscribing witnesses, but Dr. Jacinto excused himself on the ground that he feared that, if he acted as subscribing witness to the will, he might become implicated in a family quarrel which would be prejudicial to him as a physician. Dr. Jacinto, however procured someone else to act in his place and he brought in Dr. Fidel Macapugay, another resident physician in the hospital. The other intending witness was one Placido Suarez. According to Platon, after the testatrix had signed all of the sheets, Dr. Macapugay followed, signing at the end of the attesting clause and upon the margin of each sheet. Then came Placido Suarez who likewise signed at the end of the attesting clause and upon each sheet. Finally, Platon himself affixed his signature at the bottom of the attesting clause at the bottom of the space used for signatures in the margin. When it came to Dr. Macapungay to testify, certain details in Atty. Platons story became somewhat vague. Per Dr. Macapungay, although he saw the testatrix sign and the fact that all his signatures are genuine, he exhibited a weak memory with respect to other things that occurred. In particular, he suggests that he left the room before Platon had finished signing all of the sheets, and he does not remember seeing Placido Suarez in the room at all Placido Suarez, meanwhile, pretended that Dr. Macapugay was not present when Suarez signed; and, while admitting his own signature, he claims not to be able to recognize the other signatures appearing on the sheets CFI judge thus refused to allow the will to be probated, for the reason that the three attesting witnesses are not in harmony upon the point whether all three of said witnesses were present together at the time and place when the testatrix and the witnesses affixed their signatures to the document. No testimony was submitted by the opposition, and the above opinion made by the trial judge with respect to the sufficiency of the proof of execution came exclusively upon the testimony of the witnesses for the proponent~ hence, this appeal

19 DE LA CERNA SPECPRO DIGESTS 2011 Issue and Held: WON the will should be probated YES! The will in question was in every respect properly executed, and we are of the opinion that error was committed by the trial court in refusing probate. Ratio: The testimony of the Atty. Platon is in every respect worthy of credit, and he gives a detailed account of the incidents connected with the execution. He shows that the testatrix BASILIA understood the contents of the instrument and that its provisions were found to be in conformity with her wishes. At the time of the execution of the instrument she was sitting up in her bed and was able to affix her signature in a clear and legible hand at the close of the will and upon each of its pages, as the law requires. The recitals of the closing paragraph in the will and of the attesting clause are full and complete in every respect and they show that the mind of the attorney was advertent to the requisites of proper formal execution. In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to participate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate The reason is that the mind of the attorney, being conversant with the requisites of the proper execution of the instrument, is more likely to become fixed on details; and he is more likely than other persons to retain those incidents in his memory Significantly, Aurea Gaspars testimony should be given weight as she was present in the room at the time the will was executed, and she corroborates Atty. Platon upon the point that all of the witnesses were present throughout the ceremonies attending the execution of the will. Gaspar speaks with apparent frankness, and we believe her testimony to be true, notwithstanding the fact that she possibly has a minor interest in the establishment of the will. In case of opposition to the probate of the will the proponent is legally bound to introduce all of the subscribing witnesses, if available Attesting witnesses to a will, therefore, are forced witnesses so far as the proponent is concerned, BUT the proponent is not bound by their testimony to the same extent that a litigant is bound by the testimony of witnesses introduced in ordinary course. It follows that the proponent of a will may avail himself of other proof to establish the instrument, even contrary to the testimony of some of the subscribing witnesses, or all of them. With respect to the will now in question, a prima facie case for the establishment of the document was made out when it appeared that the instrument itself was properly drawn and attested and that all of the signatures thereto are authentic These facts raise a presumption of regularity; and upon those facts alone the will should, be admitted to probate in the absence of proof showing that some fatal irregularity occurred. And such irregularity must be proved by a preponderance of the evidence before probate can be denied. AMIN | CHA | JANZ | KRIZEL | VIEN

20 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Vda. de Ranos et. al. v. CA

Guerrero, J. Quickie: 2 of the attesting witnesses testified against the due execution of the will and codicil while other non-subscribing witnesses testified to the contrary. HELD: The will and codicil were executed in accordance with the formalities required by law. The documents were prepared by a lawyer, Atty. Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the 3 attesting witnesses. The attestation claim far from being deficient, were properly signed by the attesting witnesses. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. If any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witness and from all the evidence presented that the will was executed and attested in the manner by law. Nature: Appeal by way of certiorari of the decision of the CA Facts: ADELAIDA NISTA who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 and codicil dated April 18, 1963 of the late EUGENIA Danila who died on May 21, 1966 asking that: o The alleged will and codicil be probated and allowed and that she or any other person be appointed as administrator of the testatrix's estate o in case no opposition thereto be interposed and the value of the estate be less than P10k said estate be summarily settled in accordance with the Rules. Buenaventura and Marcelina Guerra filed an opposition alleging among others that: o they are the legally adopted son and daughter of the late Sps. Florentino Guerra and Eugenia Danila o the purported will and codicil were procured through fraud and undue influence; o the formalities requited by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix o Eugenia had already executed on November 5, 1951 her last will and testament which was duly probated and not revoked or annulled during the lifetime of the testatrix o the petitioner is not competent and qualified to act as administration of the estate. The petitioner and the oppositors entered into a Compromise Agreement with the following terms and conditions o oppositors are the legally adopted son and daughter Sps. Florentino and Eugenia; o Florentino pre-deceased Eugenia. o

81 SCRA 393 (1978)

Eugenia, during her lifetime, had already sold, donated or disposed of all her properties, some of which to Marcelina Guerra o Eugenia executed a Deed of Donation covering a parcel of rice land and coconut land. o As the parcel of coconut has been earlier donated inter vivos and validly conveyed by the Eugenia to Marcelina, the inclusion of said parcel in the subsequent donation to Adelaida is admittedly considered a mistake and of no force and effect and will in no way prejudice the ownership and right of Marcelina o Whatever rights and interests Adelaida has or may still have thereon are already considered waived and renounced in favor of Marcelina o there is no more estate left by the said deceased Eugenia to be disposed of by the will sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony money among the relations and kins and adopted children, the will and codicil of Eugenia are considered abrogated and set aside; o As the late Eugenia has incurred debts to private persons during her lifetime, which in addition to the burial and incidental expenses amounts to P6,80, Marcelina now determined to settle the same, but Adelaida agrees to contribute in the amount of P3,400. o should there be any other property of the deceased Eugenia that may later on be discovered to be undisposed of, the same should be considered as exclusive property of her adopted children and heirs, Buenaventura and Marcelina and any right of the petitioner with respect to said property or properties, shall be deemed waived The Agreement was approved by the CFI Rosario de Ramos, Miguel Danila, Felix Danila, Miguel Gavino, Amor Danila, Consolacion Santos, and Miguel Danila son of the late Fortunato Danila filed a motion for leave to intervene as CO-PETITIONERS alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the Eugenia Danila o oppositors repudiated their institution as heirs and executors when they failed to cause the recording in the Register of Deeds the will and testament in accordance with the Rules o oppositors committed acts of ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and undue influence, to secure the schedule of partition. o prayed for the probate and/or allowance of the will and codicil, respectively and the appointment of any of them in as administrator of said estate. The intervenors also filed a motion for new trial and/or re-hearing and/or relief from judgment and to set aside the judgment based on compromise. CFI intervenors are allowed and are allowed and admitted to intervene to this proceeding; the compromise agreement is disapproved, except as regards their respective lawful rights in the subject estate; and the judgment on compromise is reconsidered and set aside; and the original Petition and amended opposition to

21 DE LA CERNA SPECPRO DIGESTS 2011 probate of the alleged will and codicil stand and denied the motion for the appointment of a special administrator filed by the intervenors. MR of the intervenors denied. A motion for the substitution of Irene, Crispina, Cristina Casiano, Edilberto Felisa, Guerra in place of their father, the Buenaventura Guerra who died was filed and granted. CFI rendered its decision allowing the probate of the will o although 2 of the attesting witness Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight and ment to the 'straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the wilt that the testatrix and the 3 instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil the same manner was likewise observed as corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil. CA - lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenor petitioners to participate; however, it disallowed the probate of the will on the ground that the evidence failed to establish that the testatrix signed her will in the presence of the instrumental witness in accordance with Art. 805 of the CC, as testified to by the two surviving instrumental witnesses. AMIN | CHA | JANZ | KRIZEL | VIEN There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the 3 attesting witnesses. The attestation claim far from being deficient, were properly signed by the attesting witnesses. These witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sign the will. o A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra care. o It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerating what they really know, saw, heard or did; they may be biased and, therefore, tell only half-truths to mislead the court or favor one party to the prejudice of the others. This cannot be said of the condition and Physical appearance of the questioned document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause which is a separate memorandum or record of the facts surrounding that the conduct of execution. Once signed by the attesting witnesses, it that compliance with the indispensable legal formalities had been observed. The attestation clause basically contracts the pretense of undue execution which later on may be made by the attesting witnesses. The witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signature following that of the testatrix show that they have in fact at not only to the genuineness of the testatrix's signature but also to the due execution of the will as embodied in the attention clause. By signing the will the witnesses impliedly to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like. All the attesting witness to a will if available, must be called to prove the will they become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent hence, the latter may present other proof of due exemption even if contrary to the testimony of or all of the attesting witness. if any or all of the submitting witness testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful ability, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witness and from all the evidence presented that the will was executed and attested in the manner by law. disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A. Barcenas, on the other. o

Issue/Held: WON the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that 2 of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. YES Petitioners - ACs of the will and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Respondents - the declaration of the two surviving witnesses that the will was not signed by the testatrix before their presence, is strengthened by two photographic evidence showing only the 2 witnesses in the act of signing, there being no picture of the same occasion showing the testatrix signing the will Ratio: There is ample and satisfactory evidence to convince us that the will and codicil were executed in accordance with the formalities required by law. o The documents were prepared by a lawyer, Atty. Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. There is no showing that the lawyers had been remiss in their sworn duty. o While the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence.

22 DE LA CERNA SPECPRO DIGESTS 2011 o The testimony of Odon Sarmiento was contradicted by his own admission. Though his admission to the effect that "when Eugenia Danila signed the testament, he and the 2 other attesting witnesses Rosendo Paz and Calixto Azusada were present was made extrajudicially, it was not squarely refuted when inquired upon during the trial. o With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. This attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a wilt Rosendo Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, be as candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. o Atty. Barcenas, more than a direct witness himself, was purposely there to oversee the accomplishment of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth perverted. It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. Fernandez v. Tantoco - In weighing the testimony of the attesting witnesses to a will, his statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to anticipate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory. The fact that the only pictures available are those which show the Witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. The probate of a will is a proceeding not imbued with adverse character, wherein courts should relax the rules on evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a reported will may be probated or denied probate. o the failure to imprint in photographs all the stages in the execution of the win does not serve any persuasive effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise existent but not confirmed by the photographic evidence. AMIN | CHA | JANZ | KRIZEL | VIEN

23 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Azaola v. Singson
Reyes, J.B.L., J. Quickie: Holographic will. Probate was denied on the ground that under A811, the proponent must present 3 witnesses who could declare that the will and the signature in the testatrixs signature Article 811 is merely permissive and not mandatory. Since the authenticity of the will was not contested, petitioner was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 cannot be interpreted 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 witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. This is the reason why the 2nd paragraph of Article 811 allows the court to resort to expert evidence. 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.

109 Phil 102 (1960)

He also testified that he recognized all the signatures appearing in the holographic will as the handwriting of the testatrix and to reinforce said statement, witness presented several documents2 to show the signatures of the testatrix, for comparison purposes; That Azaola, testified that the penmanship appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was handed to him by the testatrix. "apparently it must have been written by her" 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. 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."

Nature: 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. Facts: September 9, 1957 Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix; Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic will o Maria Milagros Azaola was made the sole heir as against the nephew of deceased Cesario Singson; Azaola testified that he saw the holographic will one month, more or less, before the death of the testatrix, as the same was handed to him and his wife;

Issue/Held: W/N denial of the probate was proper under A811 NO! A811 is merely permissive and not mandatory. Ratio: 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 cannot be interpreted as to require the compulsory presentation
the mortgage, the special power of the attorney, and the general power of attorney, besides the deeds of sale, including an affidavit, and that there were further exhibited in court two residence certificates
2

24 DE LA CERNA SPECPRO DIGESTS 2011 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 witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of Article 811 prescribes that in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory only in the case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it necessary", which reveal that what the law deems essential is that the Court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the ill is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court if experts are still needed, no unfavourable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses. AMIN | CHA | JANZ | KRIZEL | VIEN 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, Concepcion, Barrera and Gutierrez David, JJ., concur.

25 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Gan v. Yap
Bengzon, J.: Quickie: Felicidad Esguerra Alto Yap died. Gan initiated a petition for the probate of a holographic will allegedly executed by the deceased. Yap asserted that the deceased had not left any will. Petitioners argue that the holographic will may be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator. The Court held 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 The loss of the holographic will entails the loss of the only medium of proof. 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. Facts:

104 Phil 509 (1958)

o
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.

Issue/Held: WON a holographic will should be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator NO. Ratio: 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 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? 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. 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 it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. o Nature of wills Holographic- the only guarantee of authenticity is the handwriting itself;

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. 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, refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal. 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: o after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. o She confided however that it would be useless if her husband discovered or knew about it. o Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. o The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. o 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.

26 DE LA CERNA SPECPRO DIGESTS 2011 Ordinary- the testimony of the subscribing or instrumental witnesses (and of the notary, now). Admissibility of oral testimonies Ordinary- 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 end themselves to any fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will. Holographic- if oral testimony were admissible9 only one man could engineer the fraud this way: after making a clever or passable imitation of the handwriting and 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. In case of a lost will Ordinary: the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; 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. AMIN | CHA | JANZ | KRIZEL | VIEN

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.

27 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Rodelas v. Aranza
Relova, J. Quickie: Appellant Rodelas filed for probate of holographic will of Ricardo Bonillawhich the lower court denied noting that the alleged holographic will was executedfor more than 14 years from the time the execution of will. In view of the lapse of 14years, the fact that the original of the will cannot be located shows that thedecedent has discarded before his death his allegedly missing Holographic Will. Whether or not a holographic will which was lost or cannot be found can be proved by photostatic copy. If the holographic will has been lost, and no other copy is available, the will cannot probated because the best and only evidence is the hand writing of thetestator. But if a photostatic copy of a holographic will may be allowed because comparison can be made with the standard writings of testator. Nature: 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. Facts: 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 was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla on the following grounds: o 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; o 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 o The alleged hollographic 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 o 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 . Following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will, arguing that: o 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 o Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.

119 SCRA 16 (1982)

Issue/ Held: WON a holographic will which was lost or cannot be found can be proved by means of a photostatic copy. YES Ratio: 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 Gam vs. 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.

28 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Vda. de Perez v. Tolete

Quiason, J. Quickie: Spouses-Doctors Cunana, American Citizens, executed separate wills containing reciprocal provisions and pertaining to the same properties. They died in a fire that gutted their family home. Their wills were duly probated in New York. When wifedoctors mother, herein petitioner SALUD, sought the probate of both wills in the Philippines, the brothers and sisters of husband-doctor (the Cunanan collaterals) opposed, accordingly, for SALUDs failure to prove the laws in New York pertaining to allowance and probate of wills, among others. Marami pang masalimuot na procedural details below. HELD: Per Art. 816 of the Civil Code, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is imperative. Corollarily, as borne by jurisprudence, 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. Nature: This is a petition for certiorari under Rule 65 to set aside the Order of the RTC Malolos presided by respondent Judge Zotico A. Tolete Facts: Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, American citizens, established a successful medical practice in New York, USA. The Cunanans lived at Syracuse, New York, with their children, Jocelyn, Jacqueline, and Josephine On Aug 1979, husband-doctor 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". 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 also appointed his wife as executrix of his last will and testament and Dr. Rafael as substitute executor Another provision in Dr.-husbands will provided that if wife and himself 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 her, and his estate shall be administered and distributed, in all respects, in accordance with such presumption Four days later, wife-doctor executed her own last will and testament containing the same provisions as that of the will of her husband, i.e. that if husband and herself 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 her, and her estate shall be administered and distributed in all respects, in accordance with such presumption

232 SCRA 722 (1994)

Jan 1982: Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home. Thereafter, Dr. Rafael 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. These two wills were admitted to probate and letters testamentary were issued in his favor Later, SALUD, the mother of wife-doctor and herein petitioner, filed with the RTC Malolos 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 RTC Malolos, presided by Judge Gualberto J. de la Llana, issued an order directing the issuance of letters of special administration in favor of SALUD upon her filing of a P10K bond. The following day, SALUD posted the bond and took her oath as special administration As her first act of administration, SALUD filed a motion, praying that the Philippine Life Insurance Company be directed to deliver the proceeds in the amount of P50K of the life insurance policy taken by husband-Doctor with wife and their daughter Jocelyn as beneficiaries. The trial court granted the motion. Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company had delivered to SALUD the amount of P49,765.85, representing the proceeds of the life insurance policy of husband-doctor In another motion, SALUD asked that Dr. Rafael 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. Later still, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of husband-doctor (i.e., the Cunanan heirs). He manifested that before receiving SALUD's motion, 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. Thus, he prayed for deferment of the hearing on the motions SALUD filed a counter manifestation asserting: (1) that the "Cunanan collaterals are neither heirs nor creditors of the late husband-Dr and therefore, they had "no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of husband and wife-doctors, 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 The probate court granted SALUD's motion. The Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, SALUD as special administratrix of the estates of husband and wife-doctor, insisting: (1) that being the "brothers and sisters and the legal and surviving heirs" of husband-Dr, 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 SALUD was the

29 DE LA CERNA SPECPRO DIGESTS 2011 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, the executor of the estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the SALUDs "misrepresentation rendered her unfit to be a special administratrix; (4) that Dr. Rafael had, by virtue of a verified power of attorney, authorized his father, Dr. Rafael Sr., to be his attorney-infact; and (5) that Dr. Rafael Sr. is qualified to be a regular administrator "as practically all of the subject estate in the Philippines belongs to their brother, husband-doctor. The Cunanan heirs also moved that SALUD be ordered to submit an inventory or accounting of all monies received by her in trust for the estate. In her opposition, SALUD reiterated: (1) that she was the "sole and only heir" of her daughter-doctor 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" proceedings from Dr. Rafael 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 husband-Dr., he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael 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. SALUD, hence, additionally asked that Dr. Rafael Jr. be cited for contempt of court for failure to comply with the Order (to turn over bank accounts) and for appropriating money of the estate for his own benefit In their reply, the Cunanan heirs stressed 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". They asserted that by virtue of Section 2 of Rule 77, the provisions 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 FINALLY, Judge de la Llana issued an order in favor of Cunanan collaterals. He DISALLOWED the (re)probate of the two wills, RECALLED the appointment of SALUD as special administratrix, REQUIRED her to submit an inventory of the property received by her as special administratrix and DECLARED all pending incidents moot and academic. Judge de la Llana reasoned out that SALUD 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. And there being only two witnesses to the wills of the Cunanan spouses and that the Philippine law requires three witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law, the wills are invalid SALUD filed a motion for reconsideration where she had sufficiently proven the applicable laws of New York governing the execution of last wills and testaments. Judge de la Llana denied MR partially (with respect to the suspension of proceedings) but gave her 15 days upon arrival in the country within which to act on the original AMIN | CHA | JANZ | KRIZEL | VIEN order. The Cunanan collaterals opposed the 15-day palugit. Meanwhile, the case was re-raffled to Br.18 of RTC Malolos presided by Judge Tolete Judge Tolete, acting on Cunanan collateral opposition to Judge de la Llanas 15-day palugit order, issued his own order stating that "when the last will and testament . . . was denied probate," the case was terminated and therefore all orders theretofore issued should be given finality. Thus, Judge Tolete required SALUD to turn over to the estate the inventoried property and considered the proceedings for all intents and purposes, closed SALUD filed a motion to resume proceedings on account of the final settlement and termination of the probate cases in New York, and thus prayed for the reconsideration of Judge Toletes Order terminating the proceedings on the strength of Judge de la Llanas Order granting her the 15 days palugit. Judge Tolete GRANTED her motion and reconsidered IN THE MEANTIME, SALUD fell ill. Thus, Natividad, another daughter of hers and her counsel, filed a motion praying that since SALUD was ailing and incapacitated to act as special administratrix, she (Natividad, the counsel) should be named substitute special administratrix. She also FORMALLY filed an MR to the Order denying probate to the wills of the Cunanan spouses Judge Tolete denied the MR holding that SALUD did not establish the law of New York on the procedure and allowance of wills On the strength of another MR (although the case doesnt say it is an second MR), she prayed to be allowed to present further evidence on the foreign law. After the hearing, Judge Tolete 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 SALUD (via Natividad) 45 days to submit the evidence to that effect. HOWEVER, without waiting for SALUD (via Natividad) to adduce such additional evidence, Judge Tolete ruled that he found "no compelling reason to disturb its original ruling denying probate. He, however, allowed SALUD to "file anew the appropriate probate proceedings for each of the testator" This prompted SALUD to file a second MR (third na dapat), 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". 2 nd MR denied, 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" Undaunted, SALUD filed yet another MR, citing Section 3, Rule 2 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" Judge Tolete found that this pleading had been filed out of time and that the adverse party had not been furnished with a copy thereof. Judge Tolete issued an order, denying the 3rd MR filed on the grounds that "the probate of separate wills of two or

30 DE LA CERNA SPECPRO DIGESTS 2011 more different persons even if they are husband and wife cannot be undertaken in a single petition" ~hence, the instant petition Issue and Held: WON spouses-Doctors will, together, should be allowed probated considering that the evidence offered at the hearing 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 YES, sort of. Case remanded for further proceedings to receive evidence. Ratio: SALUD contends that she presented compelling pieces of evidence to warrant the allowance of the wills (e.g. certified true copies of the wills, certifications from the Secretary of State of New York and Custodian of the Great Seal on the facts that the Surrogate of the Country of Onondaga 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; certificates of Judge and the Chief Clerk of the New York court certifying to the genuineness and authenticity of the exemplified copies of the two wills; certificates of authentication from the Consulate General of the Philippines in New York; certifications from the Secretary of State that New York Judge is duly authorized to grant exemplified copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken, etc) The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provision of the Civil Code of the Philippines: 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. 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 IN THE CASE AT BAR, except for the first and last requirements, SALUD submitted all the needed evidence. Yet, SALUD 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 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. 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 ON SEPARATE WILLS PROBATED IN ONE PROCEEDING AMIN | CHA | JANZ | KRIZEL | VIEN The separate wills of the Cunanan spouses should be probated jointly. Judge Toletes 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 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 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. 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. ONE FINAL, GLARING FACT This petition cannot be completely resolved without touching on a very glaring fact SALUD has always considered herself the sole heir of wife-Dr and because she does not consider herself an heir of husband-Dr, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent Judge 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. Cunanan collaterals, contrary to SALUD'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"

31 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Suntay v. Suntay
Padilla, J. Quickie: Jose died. Apolonio, child from the first marriage, instituted an intestate proceeding. 2nd wife instituted the present proceeding for the probate of the will which was lost because it was allegedly snatched by the children from the 1 st marriage. Thereafter, a will executed in China was discovered and a motion for its admission and recording was filed. CFI initially admitted the draft of the lost will and foreign will. Upon motion of the oppositor, CFI promulgated a resolution setting aside his first decision and disallowing the wills. HELD: due execution and validity of the lost will was not established Granting that there was a will duly executed placed in the envelope and that it was in existence at the time of, and not revoked before, his death, still the testimony of Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. The authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and the will cannot be allowed, filed and recorded by a competent court of this country. Nature: Appeal from a decree of the CFI of Bulacan Facts: Jose B. Suntay married twice; 1st to Manuela T. Cruz who died on 1920 and had begotten with her Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr, and 2nd to Maria Natividad Lim Billian with whom he had as the only child Silvino, Nov. 1929 - Jose executed his last will and testament in the office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel Lopez and Go Toh. The will was prepared by Barretto upon the instance of Jose, and it was written in the Spanish language which was understood and spoken by said testator. After the due execution of the will, that is signing every page and the attestation clause by the testator and the witnesses in the presence of each other, the will was placed inside the envelope, sealed and on the said envelope the testator and the three subscribing witnesses also signed, after which it was delivered to Jose. Jose together with Maria and Silvino went to reside in Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow, Maria. Upon the death of Jose, Apolonio instituted the Intestate Proceedings No. 4892, upon the presumption that no will existed.

95 Phil 500 (1954)

Maria, who remained in Amoy, China, had with her the will and she engaged the services of the law firm of Barretto and Teodoro for the probate of the will. Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who was one of the attesting witnesses, and it was taken to the law office of Barretto and Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Barretto and Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge Teodoro; and, upon the presentation of the sealed envelope to him, he opened it and examined the said will preparatory to the filing of the petition for probate. There was a disagreement as to the fees to be paid by Maria, and as she could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge Teodoro after the latter had kept it in his safe, in his office, for 3 days. While Go Toh was showing this envelope to Apolonio and Angel, children by 1 st marriage of the deceased, they snatched and opened it and, after getting its contents and throwing away the envelope, they fled. Oct. 15, 1934 - in the same court, Maria also instituted the present proceedings for the probate of a will allegedly left by the deceased and in lieu of the lost will, a draft of the will was presented as secondary evidence for probate. The said petition is opposed by Federico on the main ground that Maria and Silvino have no more interest in the properties left by Jose, because they have already sold their respective shares, interests and participations. CFI - dismissed the petition believing that the evidence is insufficient to establish that the envelope seized from Go Toh contained the will of the deceased, and that the said will was executed with all the essential and necessary formalities required by law for its probate. Nov. 25, 1936 SC decision - The loss of the will executed by the deceased having been sufficiently established, it is ordered that this case be remanded to the court of origin for further proceedings in obedience to this decision, without any pronouncement as to the costs. In the meantime, a Chinese will which was executed in Amoy Fookien, China, on Jan. 4, 1931, by Jose, written in Chinese characters was discovered in Amoy, China and said will had been allowed to probate in the Amoy District Court, China, which is being also presented by Silvino for allowance and recording in this court. June 18, 1947 Silvino filed a petition in the CFI Bulacan praying that an order be issued (a) either directing the continuation of the proceedings in the case remanded by the SC and fixing a date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and recording of the will of the deceased which had been duly probated in China, upon the presentation of the certificates and authentications required by Section 41, Rule 123, or both proceedings concurrently and simultaneously; (b) that letters of administration be issued to SILVINO as coadministrator of the estate of the deceased together with Federico Opposed by Federico The other children of the 1ST marriage, namely, Ana, Aurora, Concepcion, Lourdes, Manuel and Emiliano, filed the following answer stating that they had no opposition

32 DE LA CERNA SPECPRO DIGESTS 2011 thereto; since said alternative petition seeks only to put into effect the testamentary disposition and wishes of their late father, they have no opposition thereto. July 3, 1947 - Silvino filed a motion for the consolidation of the intestate Estate and the Testate Estate of Jose, which latter case is the subject of the said alternative petition. The motion for the merger and consolidation of the two cases was granted. April 19, 1948 CFI Bulacan admitted the draft and allowed recording of the will which had been probated in Amoy, China. May 20, 1948 - Federico filed a motion for new trial and to set aside the decision. Sept. 29, 1948 CFI promulgated a resolution setting aside his first decision and disallowing the wills sought to be probated by Silvino. It is evident that although Silvino has established the execution and validity of the lost will, yet he had not proved clearly and distinctly the provisions of the will by at least two credible witnesses. It is clear Rule 123, sec. 41 not having been complied with and that the certification of the Chinese Consul General alone is not admissible as evidence in the jurisdiction. While the probate of a will is conclusive as to the compliance with all formal requisites necessary to the lawful execution of the will, such probate does not affect the intrinsic validity of the provisions of the will. With respect to the latter the will is governed by the substantive law relative to descent and distribution. AMIN | CHA | JANZ | KRIZEL | VIEN knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded. The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Teodoro and Ana. o Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative petition. o In his deposition, Go Toh testifies that he was one of the witnesses to the lost will consisting of 23sheets signed by Jose at the bottom of the will and each and every page thereof in the presence of Barretto, Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of them signed the attestation clause and each and every page of the will in the presence of the testator and of the other witnesses, but did not take part in the drafting thereof ; that he knew the contents of the will written in Spanish although he knew very little of that language and all he knows about the contents of the lost will was revealed to him by Jose at the time it was executed; that Jose told him that the contents thereof are the same as those of the draft which he saw in the office of Barretto in Nov. 1929 when the will was signed; that Barretto handed the draft and said to Jose: "You had better see if you want any correction"; that "after checking Jose placed the draft in his pocket and had the original signed and executed"; that Mrs. Suntay had the draft of the will translated into Chinese and he read the translation; that he did not read the will and did not compare it with the draft o Ana testifies that sometime in Sept. 1934 in the house of her brother Apolonio she learned that her father left a will "because of the arrival of my brother Manuel, who was bringing along with him certain document and he told us or he was telling us that it was the will of our father which was taken from Go Toh; that she saw her brother Apolonio read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: 1/3 to his children, 1/3 to Silvino and his mother and 1/3 to Silvino, Apolonio, Concepcion and Jose, Jr; that after Apolonio read that portion, then he turned over the document to Manuel, and he went away,; that she read the part of the will on adjudication to know what was the share of each heir; that she saw the signature of her father, Go Toh, Lopez and Barretto o Teodoro testifies that one day in Nov. 1934, Go Toh arrived at his law office in the De los Reyes Building and left an envelope wrapped in red handkerchief; that he checked up the signatures on the envelope with those on the will placed in the envelope; that the will was exactly the same as the draft If the will was snatched after the delivery by Go Toh to Teodoro and returned by the latter to the former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat that brought him to the Philippines from Amoy, and that delivery took place in Nov. 1934, then the testimony of Ana that she saw and heard her brother Apolonio read the will sometime in Sept. 1934, must not be true. Although Ana would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication and saw only the signature, of her father and of the witnesses. But her

Issues/Held: (1) WON Silvino and Maria are estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their share right, title and interest in the estate of Jose to Jose G. Gutierrez and the Sps. Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico C. Suntay. NO (2) WON the dismissal of the petition for probate of the will was a bar to the filing of this petition. NO (3) WON due execution and validity of the lost will was established. NO (4) WON the will executed in China should be admitted. NO Ratio: (1) Silvino and his mother Maria are NOT estopped from asking for the probate of the lost will or of the foreign will for the validity and legality of such assignments cannot be threshed out in this proceedings which is concerned only with the probate of the will and testament executed in the Philippines or of the foreign will allegedly executed in Amoy and claimed to have been probated in the municipal district court of Amoy, Fookien province, Republic of China. (2) The dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this petition on 18 June 1947, or before the expiration of 10 years. (3) Section 6, Rule 77: No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his

33 DE LA CERNA SPECPRO DIGESTS 2011 testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away If it is true that Go Toh saw the draft in the office of Alberto Barretto in Nov. 1929 when the will was signed, then the part of his testimony that Barretto handed the draft to Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after checking Jose B. Suntay put the draft in his pocket and had the original signed and executed cannot be true, for it was not the time for correcting the draft of the will, because it must have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in the final draft of the will which was signed on that occasion. All of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him by Jose and from reading the translation of the draft into Chinese. Testimony of Federico who testifies that he read the supposed will or the alleged will of his father and that the share of the surviving widow, according to the will, is 2/3 of the estate. But this witness testified to oppose the appointment of a coadministrator of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but also in the conjugal property. His testimony that under the will the surviving widow would take 2/3 of the estate is at variance with the draft and the testimony of Teodoro. According to the latter, 1/3 is for the strict legitime is for the ten children; 1/3 for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and 1/3 for free disposal is for the surviving widow and her child Silvino. Granting that there was a will duly executed placed in the envelope and that it was in existence at the time of, and not revoked before, his death, still the testimony of Teodoro alone falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither competent nor credible witnesses. Barretto testifies that in the early part of 1929 he prepared or drew up two wills for Jose at the latter's request, the rough draft of the first will was in his own handwriting, given to Lopez for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow; that 2 months later Jose and Lopez called on him and the former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the 2nd will typed and gave it to Lopez; that he did not sign as witness in the 2nd will; Jose copied from the typewritten draft; that the handwritten insertions or additions in lead pencil to draft are not his; that the final draft of the 1st will made up of 4 or 5 pages was signed and executed, 2 or 3 months after, Jose and Lopez had called; that on that occasion they brought an envelope where the following words were written: "Testamento de Jose B. Suntay"; that after the signing of the will it was placed inside the envelope together with an inventory of the properties of Jose and the envelope was sealed by the signatures of the testator and the attesting AMIN | CHA | JANZ | KRIZEL | VIEN witnesses; that he again saw the envelope in his house one Saturday in the later part of Aug. 1934, brought by Go Toh and it was then in perfect condition; that on the following Monday Go Toh went to his law office bringing along with him the envelope in the same condition; that he told Go Toh that he would charge P25,000 as fee for probating the will; that Go Toh said he wanted to keep it and on no occasion did Go Toh leave it to him. The testimony of Go Toh taken and heard by Assistant Fiscal Albert in connection with the complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope, corroborates the testimony of Barretto to the effect that only 1 will was signed by Jose at his office in which he (Barretto), Lopez and Go Toh took part as attesting witnesses. Go Toh testified before the same assistant fiscal that he did not leave the will in the hands of Teodoro.

(4) As to the will claimed to have been executed in Amoy, China Rule 78. Section 1: Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and recorded by the proper CFI in the Philippines. Rule 78, Section 2: When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the Philippines, by the executor or other person interested, in the court having jurisdiction, such 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. Rule 78, Section 3: If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally proved and allowed in such court. The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China are inadmissible, because apart from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. All the proceedings had in the municipal district court of Amoy were for the purpose of taking the testimony of 2 attesting witnesses to the will and that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the subject.

34 DE LA CERNA SPECPRO DIGESTS 2011 It is a proceeding in rem and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice was received by the interested parties residing in the Philippines. The proceedings had in the municipal district court of Amoy, China, may be likened to or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings were held at the back of such interested parties. The order of the municipal district court of Amoy, China: The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no errors, after said minutes were loudly read and announced actually in the court. This does not purport to probate or allow the will which was the subject of the proceedings. The will and the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts and principles followed in the probate and allowance of wills. The authenticated transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate or allowance of a will and the will cannot be allowed, filed and recorded by a competent court of this country. AMIN | CHA | JANZ | KRIZEL | VIEN To require that a copy of the will or the language of the bequests, in detail, should be pleaded, where no copy has been preserved, and where the memory of the witnesses does not hold the exact words, would not only deny the substance for mere form, but would offer a premium upon the rascality of one whose interests might suggest the destruction of a will. Bearing in mind that the circumstances of this case lead to the only conclusion that the loss of the will in question is of course imputable to those whose interests are adverse to the petitioner and the widow, the dispositions of the properties left by the deceased is provided in his will which was lost or snatched in the manner recited in the decision of this Court in the case of Lim Billian vs. Suntay, had been more than sufficiently proved by the testimony of Judge Teodoro, Go Toh, and Ana, supported conclusively by the draft of the lost will presented in evidence, and even by the testimony of Federico himself. The trial Judge was positive in his first decision that "the testimony of Judge Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition." Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and distinctly the provision of the lost will, because: "He did not, and he could not have done so even if he tried because the original will was not read to him nor by him before or at the signing of the same. It was written in Spanish and he did not and does not understand the Spanish language. Neither was there any occasion for him to have the contents of the said will, after its execution and sealing inside the envelope , read to him, because it was opened only when Judge Teodoro had examined it and then subsequently snatched from Go Toh." The later position thus taken by Judge Pecson is palpably inconsistent with the following unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China: Q. Did you know how the property was distributed according to the will?"A. I know that more than P500,000 was for the widow and her son, more than P100,000 for the heirs that are in the family. As to Ana's corroborating testimony, Judge Pecson aptly made the following findings: "Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the will in question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay immediately after the snatching. She read it and she particularly remembers the manner in which the properties were to be distributed. The draft was shown to her on the witness stand and she declared that the provision regarding the distribution of the properties in the draft is the same as that contained in the original will. Said testimony of Ana, therefore, belies the testimony of Atty. Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state that "Ana on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said lost will, because she has not had enough schooling and she does not possess adequate knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness stand." We are really at a loss to understand why, without any change whatsoever in the evidence, the trial Judge reversed his first decision, particularly when he announced therein that "it is now incumbent upon this court to delve into the evidence WON Jose left a will and another will which was executed and probated in Amoy, China." His action is indeed surprising when we take into account the various circumstancial features presently to be stated, that clearly confirm the testimony of

Separate Opinions, PARAS, C.J., dissenting: CFI Bulacan in its resolution held that it reiterates its finding of the same facts in this resolution, and merely proceeds to pose the sole question whether or not the facts established by the Silvino, warrant the legalization of the lost will and allowance and recording of the will that was executed in Amoy, China." The somersault executed by the trial court is premised on the ground that "although the petitioner has established the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of the will by the least two credible witnesses"; and that, assuming that the will of Jose executed in Amoy, China, was in accordance with the law of the Republic of China, the certification of the Chinese Consul General in the Philippines as the existence of such law is not admissible evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent, is not corroborated by the witnesses Go Toh and Ana and, therefore, falls short of the requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be "clearly and distinctly proved by at least two witnesses." That this requirement was obviously construed, to mean that the exact provisions are to be established. The sound rule, as to the degree of proof required to establish the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have substantiated the provisions affecting the disposition of the testator's properties; and this is especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the destruction of a will."

35 DE LA CERNA SPECPRO DIGESTS 2011 Judge Teodoro, G. Toh and Ana, or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose. The most important piece of evidence in favor of the petitioner's case is the draft of the lost will. Its authenticity cannot be seriously questioned, because according to the trial Judge himself, oppositor's own witness, Atty. Barretto, admitted it to be "identical in substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and "B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly genuine signature on the envelope. The finding of Judge Pecson on the point in his first decision (reiterated expressly in the resolution on the motion for new trial), should control, not only because it is in accordance with the evidence but because the oppositor had failed and did not even attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will is therefore conclusive. It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico Suntay had opposed the probate of the will in question; the rest having expressly manifested in their answer that they had no opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the testamentary disposition and wishes of their late father." This attitude is significantly an indication of the justness of petitioner's claim, because it would have been to their greater advantage if they had sided with oppositor Federico in his theory of equal inheritance for all the children of Jose. Under the lost will or its draft, each of the Suntay children would receive only some P 25,000, whereas in case of intestacy or under the alleged will providing for equal shares, each of them would receive some P100,000. And yet the Suntay children other than Angel, Jose and Federico had chosen to give their conformity to the alternative petition in this case. Another confirmation of the lost will is the will executed in Amoy, Fookien, China and probated in Amoy District Court, China, containing virtually the same provisions as those in the draft. What better evidence is there of an man's desire or insistence to express his last wishes than the execution of a will reiterating the same provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the jurisdiction, its probative value as corroborating evidence cannot be ignored. Oppositor himself had admitted having read the will in question under which the widow was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the contents of the will sought to be probated. The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. There is evidence to the effect that Atty. Barretto might have become hostile to the petitioner and his mother in view of the latter's refusal to agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence tending to show that as early as 1942, Atty. Barretto was paid by Federico the sum of P16,000 which, although allegedly for services in the testate proceedings, was paid out of the personal funds of said oppositors to supply Atty. Barretto's needs. AMIN | CHA | JANZ | KRIZEL | VIEN Silvino - decision of this Court in the case of Lim Billian vs. Suntay, constitutes res judicata on these points: (a) that only 1 will was prepared by attorney Barretto, and (b) that the issue to be resolved by the trial court was whether the draft is a true copy or draft of the snatched will, and contends that these points already adjudged were overlooked in the majority opinion. SC - The decision of this Court in the case referred to does not constitute res judicata on the points adverted to by the appellant. The only point decided in that case is that "the evidence is sufficient to establish the loss of the document contained in the envelope." In the opinion of this Court, this circumstance justified "the presentation of secondary evidence of its contents and of whether it was executed with all the essential and necessary legal formalities." That is all that was decided. What the Court passed upon and decided in that case is that there was sufficient evidence to prove the loss of the of the will and that the next step was to prove by secondary evidence its due execution in accordance with the formalities of the law and its contents, clearly and districtly, by the testimony of at least two credible witnesses. Silvino - invokes Rule 133 to argue that Rule 77 should not have been applied to the case but the provisions of section 623 of the Code of Civil Procedure, for the reason that this case had been commenced before the Rules of Court took effect. SC - But Rule 133 cited by the appellant provides: These rules shall take effect on July 1, 1940. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply. o So, Rule 77 applies to this case because it was a further proceedings in a case then pending. o But even if section 623 of the Code of Civil Procedure were to be applied, still the evidence to prove the contents and due execution of the will and the fact of its unauthorized destruction, cancellation, or obliteration must be established "by full evidence to the satisfaction of the Court." This requirement may even be more strict and exacting than the two-witness rule provided for in section 6, Rule 77. The underlying reason for the exacting provisions found in section 623 of Act No. 190 and section 6, Rule 77, the product of experience and wisdom, is to prevent imposters from foisting, or at least to make for them difficult to foist, upon probate courts alleged last wills or testaments that were never executed. It must be borne in mind that this is not a petition for a writ of certiorari to review a judgment of the CA on questions of law where the findings of fact by said Court are binding upon this Court. This is an appeal from the probate court, because the amount involved in the controversy exceeds P50,000 and this Court in the exercise of its appellate jurisdiction must review the evidence and the findings of fact and legal pronouncements made by the probate court. If such conclusions and pronouncements are unjustified and erroneous this Court is in duty bound to correct them. Not long after entering the first decree the probate court was convinced that it had committed a mistake, so it set aside the decree and entered another. This Court affirmed the last decree not precisely upon the facts found by the probate court but upon facts found by it after a careful review and scrutiny of the evidence, parole and documentary. After such review this Court has found that the provisions of the will had not been established clearly and distinctly by at least 2

Resolution Nov. 5 1954

36 DE LA CERNA SPECPRO DIGESTS 2011 credible witnesses and that conclusion is unassailable because it is solidly based on the established facts and in accordance with law. The lack of objection to the probate of the lost will does not relieve the proponent thereof or the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof at least two credible witnesses. It does not mean that they accept the draft as an exact and true copy of the lost will and consent to its probate. Even if the children were agreeable to the probate of said lost will, still the due execution of the lost will must be established and the provisions thereof proved clearly and distinctly by at least two credible witnesses, as provided for in section 6, Rule 77. The appellant's effort failed to prove what is required by the rule. The part of the deposition of Go Toh does not refer to Go Toh but to Lopez. Even if Go Toh heard Lopez read the draft for the purpose of checking it up with the original held and read by Jose, Go Toh should not have understood the provisions of the will because he knew very little of the Spanish language in which the will was written. In fact, he testifies in his deposition that all he knows about the contents of the lost will was revealed to him by Jose at the time it was executed; that Jose told him that the contents thereof are the same as those of the draft; that Mrs. Suntay had the draft of the will translated into Chinese and he read the translation; that he did not read the will and did not compare it with the draft The appellant does not understand how the Court came to the conclusion that Ana Suntay, a witness for the appellant could not have read the part of the will on adjudication. According to her testimony "she did not read the whole will but only the adjudication," which, this Court found, "is inconsistent with her testimony in chief that "after Apolonio read that portion, then he turned over the document of Manuel, and he went away." The sentence "he went away" in Ana's testimony must logically and reasonably refer to Manuel, who was a caller or visitor in the house of his brother Apolonio and not to the latter who was in his house. The sum of P16,000 was paid upon recommendation of the former administrator and order of the probate court for services rendered by Barretto not only in the probate proceedings that also for services rendered to his father. AMIN | CHA | JANZ | KRIZEL | VIEN

37 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Ramirez de la Cavada v. Ramirez et. al.

Concepcion, J: Quickie: 2 appeals 1. Appeal # 1: About the petition of certain creditors of the deceased to have BPO appointed as regular administrator as regards their claims to the estate. Butte wanted bill of particulars coz she was saying she cant file opposition/reply to their petition because it was vague. Petitioners are saying that Butte cant intervene coz shes not a person with interest. Court said she has interest since Butte was named a legatee; even though the will wasnt probated yet, she can take steps to preserve such inchoate right as she may have. 2. Appeal # 2: brother of deceased v. nieces and nephews. Brother wanted the will probated, his own children (nieces and nephews of the deceased) opposed on ground that the will has not been executed with the requisite formalities. Nature: Two appeals, taken by Angela M. Butte, from two different orders of the Court of First Instance of Manila, in Special Proceedings No. 15026 thereof, entitled "Testamentary Proceedings of the late Jose V. Ramirez, Jose Eugenio Ramirez de la Cavada, petitioner". The first appeal (G.R. No. L-6601) is from an order of said court, dated November 18, 1952, appointing the Bank of the Philippine Islands as regular administrator of the estate of said deceased. The second appeal (G.R. No. L-6602) refers to an order of said court, dated January 21, 1953, denying the probate of the alleged will and testament of the deceased. Facts: a) First Appeal October 30, 1952 Jose Ma. Cavanna, acting as attorney-in-fact of Belen T., Rita E., Ramon A., George P., and Jose E., all surnamed Ramirez, filed, in said testamentary proceedings, a motion stating that they are creditors of the late Jose V. Ramirez, who was their attorney-in-fact and, as such, had, in his possession, certain sums ("ciertas cantidades") belonging to the movants, o and that, in order that their claim against the decedent could be filed, a regular administrator was necessary, for which reason they prayed that the Bank of the Philippine Islands, which was the special administrator of said estate, be appointed its regular administrator. On November 6, Angela M. Butte, who was named, in the will, as heir to, or legatee of, the free portion of (one-third of) the estate of the deceased, filed a pleading alleging that she was not in a position to answer said motion of October 30, 1952, owning to the failure thereof to specify the amounts therein referred to, and praying that action on said motion be deferred until after Cavanna shall have submitted a bill of particulars and said Mrs. Butte shall have filed her answer to said motion. b)

100 Phil 635 (1956)

The next day, counsel for Esperanza Ramirez de Cortabitarte, Elsa Ramirez de Chambers, Lily Ramirez Vda. de Pfannenschmidt and Horacio Ramirez, the legitimate children of the deceased, who was a widower, filed a statement urging the court to grant Cavanna's aforementioned motion. This the lower court did in an order dated November 18, 1952. A reconsideration of this order having been denied, Mrs. Butte filed notice of her intention to appeal therefrom. Upon the submission of her record on appeal, Cavanna and the children of the decedent objected to its approval, upon the ground that Mrs. Butte has no right to intervene in the case and that said record on appeal had been filed beyond the reglementary period. The lower court overruled this objection and approved said record on appeal. The appellees now insist that the appeal should not be entertained for the reasons above stated.

Second Appeal Jose V. Ramirez died in Zurich, Switzerland, on October 20, 1951. Four (4) days later, or on October 24, 1951, Atty. Resplador Sobretodo filed with the Clerk of the Court of First Instance of Manila, the document alleged to be the will of the testator. The same consists of five (5) sheets. (I removed the will, because its in Spanish, so irrele na rin.) On the left hand margin of each one of these four (4) pages (excluding the cover) the signatures are rubrics purporting to be those of Jose V. Ramirez, Jose Ma. Cavanna, Juan Blanco and Arsenio Ventosa appear in the order given, from the bottom to the top. As already adverted to, a signature and rubric, purporting to be those of the deceased Jose V. Ramirez, appears, also, at the foot of the above quoted handwritten note on the cover of Exhibit C . On October 27, 1951, Jose Eugenio Ramirez de la Cavada, a brother of the deceased, filed, with said court, a petition for the probate of the aforementioned Exhibit C, as the last will and testament of said decedent. His aforementioned legitimate children objected to the petition, upon the ground that Exhibit C does not have the conditions essential to its validity and has not been executed with the requisite formalities. At the hearing of said petition, the following appeared: (a) Atty. S. Eiguren and Alcuaz, for petitioner; (b) Atty. Joaquin Ramirez, for the children and grandchildren of the decedent; and (c) Attys. Delgado and Flores, for appellant herein. Oral and documentary evidence were introduced, the most important, for purposes of this appeal, being the testimony of Juan Blanco, Arsenio J. Ventosa, Jose Ma. Cavanna, Vicente Alvarez and Amadeo Cabe. As soon as Exhibit C was shown to Luan Blanco, he said without examining its contents that he did not remember having seen it before. o Upon being confronted with the signatures, on Exhibit C, reading "J. Blanco", the witness admitted that they seem to be his signatures, adding, however, that he remembers nothing about it ("no tengo idea de esto"). o He testified, also, that he had been an employee of the decedent for many years; that he (witness) was working in the office of the decedent, at the Samanillo Building, Escolta, Manila, on August 28, 1944, the date of Exhibit C;

38 DE LA CERNA SPECPRO DIGESTS 2011 o that the decedent was then in full possession of his mental faculties; o that the signatures, on Exhibit C, reading J. V. Ramirez, are genuine signatures of the decedent; that the "nota" on the cover of Exhibit C is in decedent's handwriting; o that the signatures on Exhibit C reading Jose M. Cavanna and Arsenio Ventosa seem to be the genuine signatures of these persons. Upon further questioning by appellant's counsel, o the witness admitted that the signatures on Exhibit C reading J. Blanco and Jose M. Cavanna are his genuine signatures and those of Atty. Cavanna, respectively, o but Blanco added that someone, whose identity he does not recall, brought the document to his desk, in the aforesaid office, and that he signed Exhibit C without reading in and without knowing what it was. Arsenio J. Ventosa declared that the signatures on Exhibit C, reading Arsenio Ventosa, look like, and seem to be, his signatures; that he neither admits nor denies the genuineness thereof; and that there is no difference between said signatures and his genuine signatures, except that the former do not bear the initial "J" which he writes between his name and surname. It appears, however, that he, also, used to sign without said initial as indicated in the samples of his signatures, at different times, prepared by the witness in open court, and marked as Exhibit D-1 although he claimed to have given up such practice many years before August 28, 1944. Jose M. Cavanna identified his signatures and those of the decedent on Exhibit C, but said that he remembered none of the details surrounding its execution, although he assumed that the legal formalities must have been complied with, for otherwise he would not have affixed his signatures thereon. Vicente Alvarez declared that he was a messenger of the decedent on August 28, 1944 and many years prior thereto; o that, on said date, the decedent signed Exhibit C in his office, at Samanillo Building, at the foot of the third page of the body thereof and on the left hand margin of the four (4) pages of which it consists (excluding the cover, but including the attestation clause) in his presence and that of Jose M. Cavanna, Juan Blanco and Arsenio Ventosa; and that these attesting witnesses signed on the left hand margin of said four (4) pages and at the foot of the attestation clause, in the presence of each other and of the testator, as well as in his (Alvarez') own presence. Major Amadeo Cabe, handwriting expert of the Manila Police Department, who asserted that the signatures on Exhibit C reading Arsenio Ventosa and the sample signatures of the latter on Exhibit D-1 had been written by one and the same hand. Lower court concluded that "the requirements of the law had not been complied with" in the execution of Exhibit C and accordingly, denied the admission thereof to probate. 3) AMIN | CHA | JANZ | KRIZEL | VIEN W/N denial of admission to the probate of the will was proper. NO!

Ratio: 1) As regards the first, suffice it to say that, in said Exhibit C, one-third (1/3) of the estate of the decedent is bequeathed to Mrs. Butte. Although, when the order complained of was issued (November 18, 1952), Exhibit C had not, as yet been probated as the last will and testament of the decedent, and, subsequently thereto (on January 21, 1953), the lower court refused to allow said instrument to probate, the order to this effect has not become final, owning to the other appeal (G.R. No. L6602) interposed by Mrs. Butte. Until such appeal shall have been finally disposed of, there is no means of determining conclusively whether appellant has an interest, or none, in the estate of the deceased. Meanwhile, the legacy constituted in her favor in Exhibit C suffices to grant her the personality necessary to ask that appropriate measures be taken for the preservation of such rights as she may have, should Exhibit C be eventually probated. This includes the right to intervene in the matter of appointment of an administrator, whether special or regular. 2) Referring, now, to the merits of the appeal from the order appointing a regular administrator, the question raised is whether said order contravenes Rule 81, section 1, of the Rules of Court, reading: Appointment of special administrator. When there is delay in granting letters testamentary or of administration occasioned by an appeal from the allowance or disallowance of a will, or from any other cause, the court may appoint a special administrator to collect and take charge of the estate of the deceased until the question causing the delay are decided and executors or administrators thereupon appointed. Appellees maintain the negative, upon the ground that this section applies only when the decedent has left a will directing the appointment of a particular person as executor thereof and that Exhibit C is silent thereon; but, such pretense is not borne out by the next of the above-quote provision. What is more, the authority therein given for the appointment of a special administrator, "when there is delay in granting letters testamentary or of administration, occasioned by an appeal from the allowance or disallowance of a will" which is precisely the situation obtaining in the case at bar "or from any other cause", implies necessarily a denial of the power to appoint a regular administrator during the pendency of said appeal. Indeed, what need would there be to appoint a special administrator, if, at any rate, a regular administrator could, in the meanwhile, be properly appointed? Appellees stress the fact that they represent, at least two-third (2/3) of the estate of the deceased, and that, at best, appellant could have no more than onethird (1/3) thereof, and, hence, a minority interest therein. This is, however, immaterial to the issue before us, for, if Exhibit C were probated, such interest would be a factual reality and, hence, she would have an incontestable right to be heard on the choice of a regular administrator.

Issues/Held: 1) W/N Butte can intervene in the 1st case re: appointment of administrator YES! 2) W/N order of probate court appointing a regular administrator contravenes Rule 81, Sec. 1 NO.

39 o DE LA CERNA SPECPRO DIGESTS 2011 In the present case, she was even denied the opportunity to take remedial measure for the preservation of said right. She prayed that action on Cavanna's motion of October 30, 1952, be deferred, because the allegations therein were not sufficiently concrete her to answer thereto. It was alleged in said motion that the principals of Cavanna were creditors of the decedent, because the latter had in his possession "ciertas cantidades" (certain sums) belonging to them. No averment was made as to amount, time, place, transaction or other circumstances which would reasonably permit the identification of the credits or sums referred to in said motion. Upon the other hand, Cavanna's principals had sued appellant in Civil Case No. 17610 of the Court of First Instance of Manila, for the recovery of P38,333.20 allegedly due from her by way of rentals of a real property leased to her by the decedent and Ramon V. Ramirez, and damages. Appellant maintains that, if the sum of money involved in such Civil Case No. 17610 were the same object of said motion of October 30, 1952, then she could oppose the latter upon the ground that the movants are not creditors of the deceased. Hence, she sought a bill of particulars and urged the court to defer action until the filing thereof and of her answer to said motion. Instead, the court granted the motion, which was not even verified, in violation, not only of said Rule 81, Section 1, of the Rules of Court, but, also, of the due process clause. AMIN | CHA | JANZ | KRIZEL | VIEN Escolta, Manila. Moreover, the first used to sent for his counsel, Jose M. Cavanna, whenever the services of the latter were needed. Hence, in the ordinary course of events, Atty. Cavanna would have been called, and would have gone, to the office of the decedent. In short, inasmuch as each and every one of them were in the same place, at the time of the execution of Exhibit C, and both the testator and Atty. Cavanna were well posted on the formalities essential to the validity of wills, it was only natural and logical for the testator and the attesting witnesses to sign on Exhibit C in the presence of each other. According to Mr. Cavanna, he was very careful in the observance of the legal requirements, so much so that, as a matter of policy, he saw to it that attesting witnesses signed in the following order, namely: first immediately after the testator the youngest; then the oldest; and last, the one whose age is intermediate between both. The signatures on the left hand margin of the four (4) pages of Exhibit C (excluding the cover) appear to have been written in such order, from the bottom to the top the decedent's at the bottom; then comes that of Cavanna, 58 years of age; next is the signature of Blanco, 74 years of age; and last the signature of Ventosa, 68 years of age. These witnesses signed, also, at the foot of the attestation clause in the same order: on the left (immediately below said clause), Cavanna; on the right, Blanco; and midway between, but below, both, Ventosa. It is apparent that the aforementioned practice of Cavanna was strictly adhered to in Exhibit C and that, accordingly, he must have supervised its execution and seen to it that the same took place in accordance with law. The signatures of the attesting witnesses, appear to have been written with the same pen and ink, thus indicating that they were affixed on the same occasion and in the presence of each of the signatories to Exhibit C. According to Cavanna, the decedent was a very cautious and methodical, and this is fully born out by the record. Thus: (a) He typed Exhibit C personally. (b) On the cover and on "Pagina Primera (1-a)" thereof, he specified that it was a closed ("Cerrado") will. (c) Below his name "JOSE V. RAMIREZ" (in both pages) he typed, in parenthesis, his full names and surnames "(JOSE VIVENCIO RAMIREZ Y MIRANDA)". (d) On the upper margin of each one of the four (4) pages (excluding the cover), he affixed, in lavender ink, a rubber stamp reading "ORIGINAL". (e) On the right side of said margin he typed, uniformally, the page number, in words and figures: "Pagina Primera (1-a)", Pagina Segunda (2a)", Pagina Tercera (3a)" and "Pagina Quarta (4a)", all underlined, Capitalizing the first letter of each word, with an accent on the first "a" of "Pagina", and a dot under the letter "a" in (1a), (2a), (3a), (4a). (f) The wording of Exhibit C is carefully chosen. (g) In the opening paragraph thereof, he set forth the circumstances establishing his capacity to make a will. (h) In its first clause, he stated the facts pertinent to his birth, marriage and children.

e.

3)

Upon a review of the record, we find ourselves unable to agree with said conclusion for the following reasons: a. It is clear from the testimony of Juan Blanco, Jose M. Cavanna and Vicente Alvarez that the signatures on Exhibit C, reading "J. V. Ramirez" are authentic signatures of the decedent. Indeed, in opposing the probate of Exhibit C, his children do not question the genuineness of the signatures thereon of their deceased father. What is more, the latter's own brother applied for the admission of Exhibit C to probate, thus indicating that he believed these signatures to be authentic. b. The signatures on Exhibit C, reading "J. Blanco" and "Jose M. Cavanna" are, likewise, genuine. Both admitted this fact, although reluctantly, on the part of Juan Blanco. c. The signatures on Exhibit C, reading "Arsenio Ventosa' are, also, authentic. Arsenio J. Ventosa declared that they look like, and seem to be, his signatures. He even admitted that there is no difference between the former and the latter, except that his middle initial "J" does not appear in the former. It appears, however, that he used to sign without said middle initial, and, although he claims to have given up such practice many years ago, the testimony of Major Cabe, and a comparison of Ventosa's admittedly genuine signatures on Exhibits D-1, E and E-1, with the aforementioned signatures on Exhibit C, leave no room for doubt on the latter's genuineness. d. Jose M. Cavanna stated that he assumed that the requisites formalities must have been complied with, for, otherwise, he would not have affixed his signatures on Exhibit C. Indeed, the decedent, Juan Blanco and Arsenio Ventosa were, on August 28, 1944, working in the same office, at the Samanillo Building,

f. g.

40 (i) DE LA CERNA SPECPRO DIGESTS 2011 The second clause, dealing with the arrangements for his funeral, contained special provisions the event of his death, either while a widower, or should he contract a second marriage, or while abroad, with the express direction that his casket, including its glass opening, it any, be closed "y no se abra mas, evitando asi la irreverente costumbre de exponer a los curiosos, la faz del que ya se fue, al ido, dejarle en paz. . . . The third clause described his estate, without overlooking such property as may subsequently be acquired and may exist at the time of his death, as well as his debts, including his obligations In the fourth clause, he named his heirs and their respective shares: (1) one-third of his estate, or the strict legitime, to be divided equally among his four children, (2) his only son and his four (4) grandchildren shall get the "mejora" portion, in the proportion of one-third (/3) for the former, and one (/6) for each one of the latter; and (3) the appellant shall inherit the free portion. In the fifth clause, he asked appellant to help his poor relatives therein named. In the sixth and last clause, he declared explicitly that Exhibit C is the first and only will ever executed by him. The closing paragraph describes in detail the formalities with which Exhibit C was executed, strictly in accordance with law. This was reiterated in the attesting clause. Each paragraph of Exhibit C is closed with dashes, evidently, to forestall, insertions therein. Obviously, for the same purpose, dashes precede the opening phrase of each clause. He typed the incomplete word "ATESTIGUA " at the foot of "Pagina Tercera (3a)", and placed the last two syllables ("MIENTO") of said word on the top margin of Pagina Cuarta (4a)", likewise to avoid substitution of the last page. Upon its execution, Exhibit C was placed in the envelope Exhibit C-3, which was sealed with a sealing wax. A carbon copy of Exhibit C, marked Exhibit S, on which a rubber stamp, reading "DUPLICADO", appears, was placed in another envelope (Exhibit S-1), which was similarly sealed. On January 31, 1949, he opened said envelopes at one end thereof, without breaking the aforementioned wax seals. Thereupon, he wrote, on the cover of Exhibit C, "nota" trancribed on page seven (7) hereof. Then he placed Exhibit C insides Exhibit C-3, and Exhibit S inside Exhibit S-1, and wrote, below the above-quoted inscriptions on said Exhibits C-3 and S-1 Before his last trip to Europe, for medical treatment, the decedent delivered Exhibit C-2 (with Exhibits C and C-1 therein) to Atty. Resplador Sobretodo, with instructions to act in accordance with law, in the event of his death. The decedant left Exhibit S-2 (containing Exhibits S and S-1) in the possession of his son-in-law and attorney-in-fact, Modesto de Cortabitarte. AMIN | CHA | JANZ | KRIZEL | VIEN It is inconceivable that one who prepared Exhibits C and S and handled it with such extreme care, should fail to observe the very formalities which he described in said instrument with scrupulous accuracy. h. The decedent had a high sense of honor and integrity. He had possible reason to estate one thing in Exhibit C, in order to do something else. He had a perfect legal right to dispose of his estate in the manner therein set forth. He could have had no motive, therefore, to advisedly commit irregularities in the execution thereof. i. In an effort to approach the subject from all conceivable angles, we have even considered the question whether he may have prepared Exhibit C for the sole purpose of pleasing the appellant, with no intent, on his part, of execution it as his last will and testament, and, for such reason, refrained purposely from complying with the formalities essential to its validity. Such possibility cannot reasonable be entertained, however, without detracting from established probity and decency. Besides, he would not have taken pains in inserting the details appearing in Exhibit C, had he not meant the same to be his last will. Neither would he have displayed the caution adverted to above, in placing Exhibits C and S in the envelopes, Exhibits C-3 and S-1; in sealing the same; in later opening both envelopes; in writing the notes already referred to on Exhibits C, C-3 and S-1; in placing Exhibits C and C-3 inside Exhibit C-2, and Exhibits S and S-1 inside S-2; in sealing Exhibits C-2 and S-2; and in writing on Exhibit S-1 the inscription appearing thereon. Again before his last trip to Europe, he would not have delivered said envelope, Exhibit S-2 containing Exhibit C's duplicate, Exhibit S, and its envelope Exhibit S-1, to his son-in-law and attorney-in-fact, Modesto Cortabitarte. This particular act clearly evinced the intent of the decedent to give due course to Exhibit C as his last will and testament. j. Despite the testimony of Juan Blanco, to the effect that he signed Exhibit C on his desk, without knowing its contents, and, presumably, without the presence of the testator and the other attesting witnesses, we are satisfied, from all the evidence presented, that said instrument was executed in the manner required by law. With respect to the will now in question a prima facie case for the establishment of the document was made out when it appeared that the instrument itself was properly drawn and attested and that all of the signatures thereto are authentic. These facts raised a presumption of regularity; and upon this facts alone the will should be admitted to probate in the absence of proof showing that some fatal irregularities occurred. And such irregularity must be proved by a preponderance of the evidence before probate can be denied. (Fernandez vs. Tantoco, 49 Phil., 380, 385.) . . . When it appears from the evidence that the signatures to a will is the genuine signature of the testator and that the attesting witnesses subscribed in his presence, a prima facie case is made in favor of the due execution of the will; and this prima facie case is not overcome by the mere fact that the subscribing witnesses testify that they failed to notice whether or not the will was signed. (I Alexander's Commentaries on Wills, pp. 694-695.)

(j) (k)

(l) (m) (n) (o) (p) (q) (r)

(s)

(t)

(u)

41 DE LA CERNA SPECPRO DIGESTS 2011 A rebuttable presumption of the due execution of a will which purports to be signed by the testator and the requisite number of attesting witnesses arises on proof of genuineness of the signatures of the testator and the witnesses, at least where the will contains a complete attestation clause which recites an observance of all statutory requirements in the execution of wills. . . . The presumption of due execution which arises on proof of the signatures of the testator and the witnesses to a will containing an attestation clause which recites an observance of the statutory requirements for the execution of a will exists, notwithstanding there is a failure of memory on the part of the witnesses as to the facts of execution. As stated, the presumption does not need the support of the affirmative memory of a subscribing witness. (57 Am. Jur., pp. 576-577.)) AMIN | CHA | JANZ | KRIZEL | VIEN the validity of the will rests. (Fernandez vs. Tantoco, 49 Phil., 380). It is sufficient if the court is satisfied from all the proof that the will was executed and attested in the manner required by law. In this case we feel well assured that the contested will was properly executed and the order admitting it to probate was entirely proper. This view was, in effect, incorporated in Rule 77, section 11, of the Rules of Court, reading: If the will is contested, all the subscribing witnesses present in the Philippines and not insane, must be produced and examined, and the death, absence, or insanity of any of them must be satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the Philippines but outside the province where the will has been filed, their deposition must be taken. If all or some of the subscribing witnesses produced and examined testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. In line with the foregoing, we are of the opinion, and so hold, that the lower court erred in denying the admission of Exhibit C to probate, and that the latter should be allowed. Wherefore, the orders appealed from are hereby reversed and said Exhibit C is hereby admitted to probate, as the last will and testament of the deceased Jose V. Ramirez, with the costs of both instances against the appellees. It is so ordered. Paras, C.J., Bengzon, Padilla Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L. and Endencia and Felix, JJ., concur.

This presumption has been abundantly bolstered up by the other circumstances adverted to above. Upon the other hand, the attitude of the attesting witnesses is readily understandable. o Appellant is a stranger to the family of the deceased, whereas said attesting witnesses have a special attachment to the members thereof. o Thus, Juan Blanco and his wife were first cousins of the deceased wife of Don Jose V. Ramirez, and, hence, are uncles of his children. Apart from having been an employee of the deceased, Arsenio J. Ventosa used to work for his (decedent's) son-in-law, Modesto de Cortabitarte. In fact, when Ventosa took the witness stand, one of his children was an employee of Mr. Cortabitarte. Atty. Cavanna had, for many years, been counsel for the Ramirez family. He still treats Mr. Cortabitarte as his "jefe". o What is more, Horacio Ramirez, one of the children of the deceased, is a business partner of Mr. Cavanna. As pointed out above, Mr. Cavanna is, also, the attorney-in-fact for other relatives of the deceased. o Under this conditions, it is only natural that they should be biased against the appellant whom they evidently regard as an intruder and against the legacy in his favor, which they in all probability, consider immoral. In fact, Mr. Cavanna was critical of the very private life of the decedent, whom he characterized as not being a practical Catholic. However, the decedent had the perfect legal right to dispose of the three portion of his estate in favor of whomsoever he shall choose, subject to the limitations imposed by law, none of which are applicable to the case at bar. Besides, it is our bounden duty to enforce such law and it would be immoral-apart from illegal--for us not to do so, if we felt, as we do, that the requisite formalities had been complied with. Florentino vs. Francisco: When a will is contested it is the duty of the proponent to call all of the attesting witnesses, if available, but the validity of the will in no wise depends upon the united support of the will by all of those witnesses. A will may be admitted to probate notwithstanding the fact that one or more of the subscribing witnesses do not unite with the other, or others, in proving all the facts upon which

42 DE LA CERNA SPECPRO DIGESTS 2011 AMIN | CHA | JANZ | KRIZEL | VIEN

Ancheta v. Guersey-Dalaygon
Quickie: Audrey and Richard Guersey were American citizens with an adopted daughter Kyle. Audrey died with a will bequeathing her entire estate to Richard. Two years after her death, Richard married Candelaria Guersey- Dalaygon. Four years thereafter, Richard died and left a will bequeathing his entire estate to respondent except for his shares in A/G Interiors which he left to his adopted daughter. The motion to declare Richard and Kyle as heirs of Audrey and the project of partition were granted. The ancillary administrator with regards to Richards will also filed a project of partition, leaving 2/5 of Richards undivided interest in the Forbes property was allocated to respondent Candelaria, while 3/5 thereof was allocated to their three children. Respondent opposed on the ground that under the law of the State of Maryland, where Richard was a native of, a legacy passes to the legatee the entire interest of the testator in the property subject to the legacy. The Court held that a decree of distribution of the estate of a deceased person vests the title to the land of the estate in the distributees, which, if erroneous may be corrected by a timely appeal. Once it becomes final, its binding effect is like any other judgment in rem. However, in exceptional cases, a final decree of distribution of the estate may be set aside for lack of jurisdiction or fraud. Further, in Ramon vs. Ortuzar, the Court ruled that a party interested in a probate proceeding may have a final liquidation set aside when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence. Petitioners failure to proficiently manage the distribution of Audreys estate according to the terms of her will and as dictated by the applicable law amounted to extrinsic fraud. Hence the CA Decision annulling the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld. Facts: Spouses Audrey ONeill (Audrey) and W. Richard Guersey (Richard) were American citizens who have resided in the Philippines for 30 years. They have an adopted daughter, Kyle Guersey Hill (Kyle). When Audrey died, leaving a will it found that she bequeathed her entire estate to Richard, who was also designated as executor. It was admitted to probate before Maryland, U.S.A, which named James N. Phillips as executor due to Richards renunciation of his appointment. The court also named Atty. Alonzo Q. Ancheta (petitioner) as ancillary administrator. In 1981, Richard married Candelaria Guersey-Dalaygon (respondent) with whom he has two children, namely, Kimberly and Kevin. On October 12, 1982, Audreys will was also admitted to probate by the then CFI of Rizal. As administrator of Audreys estate in the Philippines, petitioner filed an inventory and appraisal of the following properties: (1) Audreys conjugal share in real estate with improvements (2) a current account in Audreys name with a cash; and (3) shares of stock in A/G Interiors, Inc.

490 SCRA 140 (2006)

On July 1984, Richard died, leaving a will, wherein he bequeathed his entire estate to respondent, save for his rights and interests over the A/G Interiors, Inc. shares, which he left to Kyle, which was also admitted to probate by the Orphans Court of Ann Arundel, Maryland, U.S.A, and James N. Phillips was likewise appointed as executor, who in turn, designated Atty. William Quasha or any member of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary administrator. Richards will was then submitted for probate before the RTC of Makati and Atty. Quasha was appointed as ancillary administrator on July 24, 1986. On October 1987, petitioner filed a motion to declare Richard and Kyle as heirs of Audrey and a project of partition of Audreys estate which were granted and approved by the trial court on February 1988. The court also issued an Order directing the Register of Deeds of Makati to cancel TCT No. 69792 in the name of Richard and to issue a new title in the joint names of the Estate of W. Richard Guersey and Kyle; directing the Secretary of A/G Interiors, Inc. to transfer 48.333 shares to the Estate of W. Richard Guersey and 16.111 shares to Kyle; and directing the Citibank to release the amount of P12,417.97 to the ancillary administrator for distribution to the heirs. Meanwhile, the ancillary administrator in Special Proceeding No. M-888 also filed a project of partition wherein 2/5 of Richards undivided interest in the Makati property was allocated to respondent, while 3/5 thereof were allocated to Richards three children. This was opposed by respondent on the ground that under the law of the State of Maryland, "a legacy passes to the legatee the entire interest of the testator in the property subject of the legacy." Since Richard left his entire estate to respondent, except for his rights and interests over the A/G Interiors, Inc, shares, then his entire undivided interest in the Makati property should be given to respondent. On October 20, 1993, respondent filed with the CA an amended complaint for the annulment of the trial courts Orders which was granted on March 1999 and order the cancellation of TCT No. 15583 of the Makati City Registry and the issuance of a new title in the name of the estate of W. Richard Guersey. Petitioner filed a motion for reconsideration, but this was denied by the CA per Resolution dated August 27, 1999. Issue: WON the decree of distribution may still be annulled under the circumstances. Held: The CA Decision annulling the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld. Ratio: The CA found merit in respondents cause and found that petitioners failure to follow the terms of Audreys will, despite the latters declaration of good faith, amounted to extrinsic fraud.

43

DE LA CERNA SPECPRO DIGESTS 2011 The CA ruled that under Article 16 of the Civil Code, it is the national law of the decedent that is applicable; hence, petitioner should have distributed Aubreys estate in accordance with the terms of her will. The CA also found that petitioner was prompted to distribute Audreys estate in accordance with Philippine laws in order to equally benefit Audrey and Richard Guerseys adopted daughter, Kyle Guersey Hill. It should be pointed out that the prescriptive period for annulment of judgment based on extrinsic fraud commences to run from the discovery of the fraud or fraudulent act/s. Respondents knowledge of the terms of Audreys will is immaterial in this case since it is not the fraud complained of. Rather, it is petitioners failure to introduce in evidence the pertinent law of the State of Maryland that is the fraudulent act, or in this case, omission, alleged to have been committed against respondent, and therefore, the four-year period should be counted from the time of respondents discovery thereof. It is undisputed that Audrey Guersey was an American citizen domiciled in Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625, it was shown, among others, that at the time of Audreys death, she was residing in the Philippines but is domiciled in Maryland, U.S.A.; her Last Will and Testament dated August 18, 1972 was executed and probated before the Orphans Court in Baltimore, Maryland, U.S.A., which was duly authenticated and certified by the Register of Wills of Baltimore City and attested by the Chief Judge of said court; the will was admitted by the Orphans Court of Baltimore City on September 7, 1979; and the will was authenticated by the Secretary of State of Maryland and the Vice Consul of the Philippine Embassy. Being a foreign national, the intrinsic validity of Audreys will , especially with regard as to who are her heirs, is governed by her national law, i.e., the law of the State of Maryland, as provided in Article 16 of the Civil Code, to wit: However, intestate and testamentary succession, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them; however, petitioner, as ancillary administrator of Audreys estate, was duty-bound to introduce in evidence the pertinent law of the State of Maryland. This is not a simple case of error of judgment or grave abuse of discretion, but a total disregard of the law as a result of petitioners abject failure to discharge his fiduciary duties. It does not rest upon petitioners pleasure as to which law should be made applicable under the circumstances. His onus is clear. Respondent was thus excluded from enjoying full rights to the Makati property through no fault or negligence of her own, as petitioners omission was beyond her control. She was in no position to analyze the legal implications of

AMIN | CHA | JANZ | KRIZEL | VIEN petitioners omission and it was belatedly that she realized the adverse consequence of the same. The end result was a miscarriage of justice. In cases like this, the courts have the legal and moral duty to provide judicial aid to parties who are deprived of their rights.