Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-26317 January 29, 1927

Estat o! M"#u $ Ma%uya&, ' & as '. (R)NC*SCO G)GO, petitioner-appellant, vs. CORNEL*O M)MU+)C, )M,ROS*O L)R*OS), (EL*C*)N) ,)U-ON, an' C)T)L*N) M)MU+)C, opponents-appellees. Nicanor Tavora for appellant. Jose Rivera for appellees. JO.NSON, J.: The purpose of this action was to obtain the probation of a last will and testa ent of Mi!uel Ma u"ac, who died on the #d da" of $anuar", %&##, in the unicipalit" of A!oo of the Province of 'a (nion. )t appears fro the record that on or about the #*th da" of $ul", %&%+, the said Mi!uel Ma u"ac e,ecuted a last will and testa ent -E,hibit A.. )n the onth of $anuar", %&##, the said /rancisco 0a!o presented a petition in the Court of /irst )nstance of the Province of 'a (nion for the probation of that will. The probation of the sa e was opposed b" Cornelio Ma u"ac, A brosio 'ariosa, /eliciana Bau1on, and Catalina Ma u"ac -civil cause No. %%22, Province of 'a (nion.. After hearin! all of the parties the petition for the probation of said will was denied b" the 3onorable C. M. 4illareal on the #d da" of Nove ber, %&#5, upon the !round that the deceased had on the %6th da" of April, %&%&, e,ecuted a new will and testa ent. 7n the #%st da" of /ebruar", %&#8, the present action was co enced. )ts purpose was to secure the probation of the said will of the %6th da" of April, %&%& -E,hibit %.. To said petition Cornelio Ma u"ac, A brosio 'ariosa, /eliciana Bau1on, and Catalina Ma u"ac presented their oppositions, alle!in! -a. that the said will is a cop" of the second will and testa ent e,ecuted b" the said Mi!uel Ma u"ac9 -b. that the sa e had been cancelled and revo:ed durin! the lifeti e of Mi!uel Ma u"ac and -c. that the said will was not the last will and testa ent of the deceased Mi!uel Ma u"ac. (pon the issue thus presented, the 3onorable Anastacio R. Teodoro, ;ud!e, after hearin! the respective parties, denied the probation of said will of April %6, %&%&, upon the !round that the sa e had been cancelled and revo:ed in the "ear %&#<. $ud!e Teodoro, after e,a inin! the evidence adduced, found that the followin! facts had been satisfactoril" proved= That E,hibit A is a ere carbon of its ori!inal which re ained in the possession of the deceased testator Mi!uel Ma u"ac, who revo:ed it before his death as per testi on" of witness $ose /eno", who t"ped the will of the testator on April %6, %&%&, and Carlos

Be;ar, who saw on >ece ber 5<, %&#<, the ori!inal E,hibit A -will of %&%&. actuall" cancelled b" the testator Mi!uel Ma u"ac, who assured Carlos Be;ar that inas uch as he had sold hi a house and the land where the house was built, he had to cancel it -the will of %&%&., e,ecutin! thereb" a new testa ent. Narcisa 0a!o in a wa" corroborates the testi on" of $ose /eno", ad ittin! that the will e,ecuted b" the deceased -Mi!uel Ma u"ac. in %&%& was found in the possession of father Mi!uel Ma u"ac. The opponents have successfull" established the fact that father Mi!uel Ma u"ac had e,ecuted in %&#< another will. The sa e Narcisa 0a!o, the sister of the deceased, who was livin! in the house with hi , when cross-e,a ined b" attorne" for the opponents, testified that the ori!inal E,hibit A could not be found. /or the fore!oin! consideration and for the reason that the ori!inal of E,hibit A has been cancelled b" the deceased father Mi!uel Ma u"ac, the court disallows the probate of E,hibit A for the applicant.? /ro that order the petitioner appealed. The appellant contends that the lower court co itted an error in not findin! fro the evidence that the will in @uestion had been e,ecuted with all the for alities re@uired b" the law9 that the sa e had been revo:ed and cancelled in %&#< before his death9 that the said will was a ere carbon cop" and that the oppositors were not estopped fro alle!in! that fact. Aith reference to the said cancellation, it a" be stated that there is positive proof, not denied, which was accepted b" the lower court, that will in @uestion had been cancelled in %&#<. The law does not re@uire an" evidence of the revocation or cancellation of a will to be preserved. )t therefore beco es difficult at ti es to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has ta:en place ust either re ain unproved of be inferred fro evidence showin! that after due search the ori!inal will cannot be found. Ahere a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presu ption is, in the absence of other co petent evidence, that the sa e was cancelled or destro"ed. The sa e presu ption arises where it is shown that the testator had read" access to the will and it cannot be found after his death. )t will not be presu ed that such will has been destro"ed b" an" other person without the :nowled!e or authorit" of the testator. The force of the presu ption of cancellation or revocation b" the testator, while var"in! !reatl", bein! wea: or stron! accordin! to the circu stances, is never conclusive, but a" be overco e b" proof that the will was not destro"ed b" the testator with intent to revo:e it. )n view of the fat that the ori!inal will of %&%& could not be found after the death of the testator Mi!uel Ma u"ac and in view of the positive proof that the sa e had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the wei!ht of the evidence. )n a proceedin! to probate a will the burden of proofs is upon the proponent clearl" to establish not onl" its e,ecution but its e,istence. 3avin! proved its e,ecution b" the proponents, the burden is on the contestant to show that it has been revo:ed. )n a !reat a;orit" of instances in which wills are destro"ed for the purpose of revo:in! the there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be ad itted b" the courts with !reat caution. Ahen it is proven, however, b" proper testi on" that a will was e,ecuted in duplicate and each cop" was e,ecuted with all the for alities and re@uire ents of the law, then the duplicate a" be ad itted in

evidence when it is ade to appear that the ori!inal has been lost and was not cancelled or destro"ed b" the testator. -Borro eo vs. Cas@ui;o, 0.R. No. '-#6<65..1 After a careful e,a ination of the entire record, we are full" persuaded that the will presented for probate had been cancelled b" the testator in %&#<. Therefore the ;ud! ent appealed fro is hereb" affir ed. And without an" findin! as to costs, it is so ordered.