EN BANC

G.R. No. 42258 September 5, 1936

In re Will of the dece!ed "eonci #olentino. $I%#&RI& '()(*, petitioner-appellant,
vs.
(+,I"IN( #&"-N#IN&, oppositor-appellant.
Vicente Foz, Marciano Almario, and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
*I(., J.:
There are two motions filed by the oppositor Aquilina Tolentino, pending resolution That of
!anuary "#, $#%&, praying for the re'onsideration of the de'ision of the 'ourt and that of the same
date, praying for a new trial.
The oppositor bases her motion for re'onsideration upon the following fa'ts relied upon in her
pleading
$. That the testatri( did not personally pla'e her thumbmar) on her alleged will*
". That the testatri( did not request Attorney Almario to write her name and surname on the
spa'es of the will where she should pla'e her thumbmar)s*
%. That the will in question was not signed by the testatri( on the date indi'ated therein*
+. That the testatri( never made the will in question* and
&. That on the date the will in question was e(e'uted, the testatri( was no longer in a physi'al or
mental 'ondition to ma)e it.
,e have again reviewed the eviden'e to determine on'e more whether the errors assigned by
the oppositor in her brief have not been duly 'onsidered, whether some fa't or detail whi'h might
have led us to another 'on'lusion has been overloo)ed, or whether the 'on'lusions arrived at in
our de'ision are not supported by the eviden'e. ,e have found that the testatri( -eon'ia
Tolentino, notwithstanding her advan'ed age of #" years, was in good health until .eptember $,
$#%%. .he had a slight 'old on said date for whi'h reason she was visited by her physi'ian, /r.
0loren'io 1anuel. .aid physi'ian again visited her three or four days later and found her still
suffering from said illness but there was no indi'ation that she had but a few days to live. .he ate
'omparatively well and 'onserved her mind and memory at least long after noon of .eptember 2,
$#%%. .he too) her last nourishment of mil) in the morning of the following day, .eptember 3,
$#%%, and death did not 'ome to her until $$ o4'lo') sharp that morning.
The will in question was prepared by Attorney 1ar'iano Almario between $$ and $" o4'lo') noon
on .eptember 2, $#%%, in the house of the testatri( -eon'ia Tolentino, after she had e(pressed to
said attorney her desire to ma)e a will and bequeath her property to the petitioner 5i'torio 6ayad
in 'ompensation a''ording to her, for his diligent and faithful servi'es rendered to her. 5i'torio
6ayad had grown up under the 'are of the testatri( who had been in her home from 'hildhood.
The will was written by Attorney Almario in his own handwriting, and was written in .panish
be'ause he had been instru'ted to do so by the testatri(. 7t was later read to her in the presen'e
of 6edro -. Cru8, !ose 0errer Cru8, 6erfe'to -. 9na and other persons who were then present.
The testatri( approved all the 'ontents of the do'ument and requested Attorney Almario to write
her name where she had to sign by means of her thumbmar) in view of the fa't that her fingers
no longer had the ne'essary strength to hold a pen. .he did after having ta)en the pen and tried
to sign without anybody4s help. Attorney Almario pro'eeded to write the name of the testatri( on
the three pages 'omposing the will and the testatri( pla'ed her thumbmar) on said writing with
the help of said attorney, said help 'onsisting in guiding her thumb in order to pla'e the mar)
between her name and surname, after she herself had moistened the tip of her thumb with whi'h
she made su'h mar), on the in) pad whi'h was brought to her for said purpose. .aid attorney
later signed the three pages of the will in the presen'e of the testatri( and also of 6edro -. Cru8,
and !ose 0errer Cru8 and 6erfe'to -. 9na, who, in turn, forthwith signed it su''essively and
e(a'tly under the same 'ir'umstan'es above stated.
7n support of her 'laim that the testatri( did not pla'e her thumbmar) on the will on .eptember 2,
$#3%, and that she never made said will be'ause she was no longer physi'ally or mentally in a
'ondition do so, the oppositor 'ites the testimony of !ulian :odrigue8, ;li'eria <uisonia, 6a8 de
-eon and her own.
!ulian :odrigue8 and ;li'eria <uisonia testified that they had not seen Attorney Almario in the
morning of .eptember 2, $#%%, in the house of the de'eased where they were then living, and
that the first time that they saw him there was at about $" o4'lo') noon on .eptember 3th of said
year, when -eon'ia Tolentino was already dead, ;li'eria <uisonia stating that on that o''asion
Almario arrived there a''ompanied only by woman named 6a'ing. They did not state that Almario
was a''ompanied by 6edro -. Cru8, !ose 0errer Cru8 and 6erfe'to -. 9na, the instrumental
witnesses of the will. .aid two witnesses, however, 'ould not but admit that their room was
situated at the other end of the rooms o''upied by the de'eased herself and by the petitioner
5i'torio 6ayad, and that their said room and that of 5i'torio 6ayad are separated by the stairs of
the house* that ;li'eria <uisonia saw the de'eased only on'e on the 2th and twi'e on the 3th,
and that !ulian :odrigue8 stayed in his room, without leaving it, from # to $" o4'lo') a. m. on the
2th of said month. ;li'eria <uisonia further stated that in the morning of .eptember 2th, she
prepared the noonday meal in the )it'hen whi'h was situated under the house. =nder su'h
'ir'umstan'es it is not strange that the two did not see the testatri( when, a''ording to the
eviden'e for the petitioner, she made her will and signed it by means of her thumbmar). 7n order
to be able to see her and also Almario and the instrumental witnesses of the will, on that
o''asion, it was ne'essary for them to enter the room where the de'eased was, or at least the
ad>oining room where the will was prepared by Attorney Almario, but they did not do so.
;li'eria <uisonia and !ulian :odrigue8 also testified that on the 2th the testatri( was already so
wea) that she 'ould not move and that she 'ould hardly be understood be'ause she 'ould no
longer enun'iate, ma)ing it understood thereby, that in su'h 'ondition it was absolutely
impossible for her to ma)e any will. The attorney for the oppositor insists li)ewise and more so
be'ause, a''ording to him and his witness 6a8 de -eon, two days before the death of the
testatri(, or on .eptember ?, $#%%, she 'ould not even open her eyes or ma)e herself
understood.
The testimony of said witnesses is not suffi'ient to overthrow, or dis'redit the testimony of the
petitioner-appellant or that of Attorney Almario and the three instrumental witnesses of the will
be'ause, to 'orroborate them, we have of re'ord the testimony of the physi'ian of the de'eased
and the a''ountant 5entura -oreto who are two disinterested witnesses, inasmu'h as the
out'ome of these pro'eedings does not affe't them in the least. The two testified that two, three
or four days before the death of the testatri(, they visited her in her home, the former
professionally, and the latter as an a'quaintan'e, and they then found her not so ill as to be
unable to move or hold a 'onversation. They stated that she spo)e to them intelligently* that she
answered all the questions whi'h they had put to her, and that she 'ould still move in spite of her
wea)ness.
7n view of the foregoing fa'ts and 'onsiderations, we deem it 'lear that the oppositor4s motion for
re'onsideration is unfounded.
The oppositor4s motion for a new trial is based upon the following fa'ts @$A That upon her death,
the de'eased left a letter signed by herself, pla'ed in a stamped envelope and addressed to
Teodoro :. Bang'o, with instru'tions not to open it until after her death* @"A that there are
witnesses 'ompetent to testify on the letter in question, in addition to other eviden'e dis'overed
later, whi'h 'ould not be presented at the trial* @%A that in the letter left by the de'eased, she
transfers all her property to Teodoro :. Bang'o stating therein that, upon her death, all the
property in question should be'ome Bang'o4s. 0rom this alleged fa't, the oppositor infers that the
de'eased never had and 'ould not have had the intention to ma)e the will in question, and @+A
that said oppositor )new of the e(isten'e of said letter only after her former attorney, Ale>andro
6anis, had been informed thereof in 1ay, $#%&, by one of Teodoro :. Bang'o4s attorneys named
!ose Cortes.
.ubsequent to the presentation of the motion for a new trial, the oppositor filed another
supplementary motion alleging that she had dis'overed some additional new eviden'e 'onsisting
in the affidavit of Attorney ;abino 0ernando 5iola wherein the latter affirms that 5i'torio 6ayad
had 'alled him on .eptember &, $#%%, to prepare the will of the de'eased but he did not do so
be'ause after seeing her he had been 'onvin'ed that she 'ould not ma)e a will be'ause she had
lost her spee'h and her eyes were already 'losed.
The affidavits of Attorneys !ose Cortes and ;abino 0ernando 5iola, substantially affirming the
fa'ts alleged by the oppositor, are atta'hed to both motions for a new trial.
The affidavits of Attorneys !ose Cortes and ;abino 0ernando 5iola are not and 'annot be newly
dis'overed eviden'e, and are not admissible to warrant the holding of a new trial, be'ause the
oppositor had been informed of the fa'ts affirmed by Attorney !ose Cortes in his affidavit long
before this 'ase was de'ided by this 'ourt. 7t is stated in said affidavit that in 1ay, $#%&, Attorney
!ose Cortes revealed to the attorney for oppositor the fa't that the de'eased had left a letter
whereby she transferred all her property to Teodoro :. Bang'o, and the >udgment was rendered
only on !anuary $&, $#%?, or eight months later.
The oppositor 'ontends that she had no reason to inform the 'ourt of said newly dis'overed
eviden'e inasmu'h as the >udgment of the lower 'ourt was favorable to her. .he, however,
overloo)s the fa't that she also appealed from the de'ision of the lower 'ourt and it was her duty,
under the 'ir'umstan'es, to inform this 'ourt of the dis'overy of said allegedly newly dis'overed
eviden'e and to ta)e advantage of the effe'ts thereof be'ause, by so doing, she 'ould better
support her 'laim that the testatri( made no will, mu'h less the will in question. .aid eviden'e, is
not new and is not of the nature of that whi'h gives rise to a new trial be'ause, under the law, in
order that eviden'e may be 'onsidered newly dis'overed eviden'e and may serve as a ground
for a new trial, it is ne'essary @aA that it 'ould not have been dis'overed in time, even by the
e(er'ise of due diligen'e* @bA that it be material, and @'A that it also be of su'h a 'hara'ter as
probably to 'hange the result if admitted @se'tion +#2, A't No. $#C* Banal vs. .afont, 3 6hil., "2?A.
The affidavit of Attorney Cortes is neither material nor important in the sense that, even
'onsidering it newly dis'overed eviden'e, it will be suffi'ient to support the de'ision of the lower
'ourt and modify that of this 'ourt. 7t is simply hearsay or, at most, 'orroborative eviden'e. The
letter of the de'eased -eon'ia Tolentino to Teodoro :. Bang'o would, in the eyes of the law, be
'onsidered important or material eviden'e but this 'ourt has not the letter in question before it,
and no attempt was ever made to present a 'opy thereof.
The affidavit of Attorney ;abino 0ernando 5iola or testimony he may give pursuant thereto is not
more 'ompetent than that of Attorney !ose Cortes be'ause, granting that when he was 'alled by
5i'torio 6ayad to help the de'eased -eon'ia Tolentino to ma)e her will and he went to her house
on .eptember &, $#%%, the de'eased was almost un'ons'ious, was unintelligible and 'ould not
spea), it does not ne'essarily mean that on the day she made her will, .eptember 2, $#%%, she
had not re'overed 'ons'iousness and all her mental fa'ulties to 'apa'itate her to dispose of all
her property. ,hat Attorney ;abino 0ernando 5iola may testify pursuant to his affidavit in
question is not and 'an not be newly dis'overed eviden'e of the 'hara'ter provided for by law,
not only be'ause it does not e('lude the possibility that testatri( had somewhat improved in
health, whi'h possibility be'ame a reality at the time she made her will be'ause she was then in
the full en>oyment of her mental fa'ulties, a''ording to the testimony of 6edro -. Cru8, !ose
0errer Cru8, 6erfe'to -. 9na, 5i'torio 6ayad and 1ar'iano Almario, but also be'ause during the
hearing of these pro'eedings in the Court of 0irst 7nstan'e, Attorney 5iola was present, and the
oppositor then 'ould have very well 'alled him to the witness stand, inasmu'h as her attorney
already )new what Attorney 5iola was to testify about, yet she did not 'all him. The last fa't is
shown by the following e('erpt from pages $+3 to $&C of the trans'ript
1r. 6AN7. @attorney for the oppositor, addressing the 'ourtA Bour Donor, 7 should li)e to
present as the last witness Attorney 0ernando 5iola who was 'alled by the petitioner 5i'toria
6ayad to prepare the will of the de'eased in his favor on .eptember &, $#%%.
C9=:T But, 1r. 6anis, are you going to testify for Attorney 0ernando 5iolaE F 1r. 6AN7.
No, Bour Donor.
C9=:T ,ell, where is that attorneyE ,here is that witness whom you wish to 'all to the
witness standE F 1r. 6AN7. Bour Donor, he is busy in the bran'h, presided over by !udge
.ison.
C9=:T And when 'an he 'omeE 1r. F 6AN7.. 7 am now going to find out, Bour Donor. 7f
the other party, Bour Donor, is willing to admit what said witness is going to testify in the
sense that said Attorney 0ernando 5iola went to the house of the de'eased on .eptember &,
$#%%, for the purpose of tal)ing to the de'eased to draft the will upon petition of 1r. 5i'torio
6ayad* if the other party admits that, then 7 am going waive the presentation of the witness
1r. 0ernando 5iola.
1r. A-1A:79 @attorney for the petitionerA ,e 'annot admit that.
C9=:T The 'ourt had already assumed beforehand that the other party would not admit
that proposition.
1r. 6AN7. 7 request Bour Donor to reserve us the right to 'all the witness, 1r. 5iola, without
pre>udi'e to the other party4s 'alling the witness it may wish to 'all.
C9=:T The 'ourt reserves to the oppositor its right to 'all Attorney 5iola to the witness
stand.
7f, after all, the oppositor did not de'ide to 'all Attorney 5iola to testify as a witness in her favor, it
might have been be'ause she 'onsidered his testimony unimportant and unne'essary, and at the
present stage of the pro'eedings, it is already too late to 'laim that what said attorney may now
testify is a newly dis'overed eviden'e.
0or the foregoing 'onsiderations, those stated by this 'ourt in the original de'ision, and the
additional reason that, as held in the 'ase of Chung Kiat vs. Lim Kio@3 6hil., "#2A, the right to a
new trial on the ground of newly dis'overed eviden'e is limited to ordinary 'ases pending in this
'ourt on bills of e('eptions, the motion for re'onsideration and a new trial filed by the oppositor
are hereby denied, ordering that the re'ord be remanded immediately to the lower 'ourt. .o
ordered.
Avancea, C. !., Villa-"eal, Abad #antos, $mperial, and Laurel, !!., 'on'ur.