Vitug v.

Court of Appeals
Facts:
1. The case is a chapter in an earlier suit involving the issue on two (2) wills of the late
Dolores Vitug who died in New York, USA in Nov 1980. She named therein private respondent
Rowena Corona (Executrix) while Nenita Alonte was co-special administrator together with
petitioner Romarico pending probate.
2. In January 1985, Romarico filed a motion asking for authorization of the probate court to
sell shares of stocks and real property of the estate as reimbursements for advances he
made to the estate. The said amount was spent for payment of estate tax from a savings
account in the Bank of America.
3. Rowena Corona opposed the motion to sell contending that from the said account are
conjugal funds, hence part of the estate. Vitug insisted saying that the said funds are his
exclusive property acquired by virtue of a survivorship agreement executed with his late
wife and the bank previously. In the said agreement, they agreed that in the event of death
of either, the funds will become the sole property of the survivor.
4. The lower court upheld the validity of the survivorship agreement and granted Romarico's
motion to sell. The Court of Appeals however held that said agreement constituted a
conveyance mortis causa which did not comply with the formalities of a valid will. Further,
assuming that it is donation inter vivos, it is a prohibited donation. Vitug petitioned to the
Court contending that the said agreement is an aleatory contract.
Issue: Whether or not the conveyance is one of mortis causa hence should
conform to the form required of wills
Ruling: NO. The survivorship agreement is a contract which imposed a mere obligation with
a term--being death. Such contracts are permitted under Article 2012 on aleatory contracts.
When Dolores predeceased her husbandm the latter acquired upon her death a vested right
over the funds in the account. The conveyance is therefore not mortis causa.

BALTAZAR vs. LAXA

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FACTS:
1. Paciencia was a 78 year old spinster when she made her last will and testament entitled
Tauli Nang Bilin o Testamento Miss Paciencia Regala(Will) in the Pampango dialect .
2. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was
read to Paciencia twice.
3. Paciencia expressed in the presence of the instrumental witnesses that the document is
her last will and testament. She thereafter affixed her signature at the end of the said
document on page s and then on the left margin of pages 1, 2 and 4 thereof.
4. The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due
execution by affixing their signatures below its attestation clause and on the left margin of
pages 1, 2 and 4 thereof, in the presence of Paciencia and of one another and of Judge
Limpin who acted as notary public.
5. Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa,
6. The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother. Paciencia lived with Lorenzos family in Sasmuan, Pampanga
and it was she who raised and cared for Lorenzo since his birth. Six days after the execution
of the Will or on September 19, 1981, Paciencia left for the United States of America (USA).
There, she resided with Lorenzo and his family until her death on January 4, 1996.
7. In the interim, the Will remained in the custody of Judge Limpin. More than four years
after the death of Paciencia , Lorenzo filed a petitionwith the RTC of Guagua, Pampanga for
the probate of the Will of Paciencia and for the issuance of Letters of Administration in his
favour.
8. Petitioners filed an Amended Opposition asking the RTC to deny the probate of Paciencias
Will on the following grounds:
a. the Will was not executed and attested to in accordance with the requirements of the law;
b. Paciencia was mentally incapable to make a Will at the time of its execution;
c. she was forced to execute the Will under duress or influence of fear or threats;
d. the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; e. signature of Paciencia on
the Will was forged;
f. assuming the signature to be genuine, it was obtained through fraud or trickery; and,
g. that Paciencia did not intend the document to be her Will.

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9. Simultaneously, petitioners filed an Opposition and Recommendation reiterating their

opposition to the appointment of Lorenzo as administrator of the properties and requesting
for the appointment of Antonio in his stead.
ISSUE: Whether Paciencia was not of sound mind at the time the will was allegedly
executed.
RULING:
The state of being forgetful does not necessarily make a person mentally
unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being
of unsound mind. Besides, Article 799 of the New Civil Code states: To be of sound mind, it
is not necessary that the testator be in full possession of all his reasoning faculties, or that
his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature
of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act. Bare allegations of duress or influence of fear or threats, undue and
improper influence and pressure, fraud and trickery cannot be used as basis to deny the
probate of a will. Here, there was no showing that Paciencia was publicly known to be insane
one month or less before the making of the Will. Clearly, thus, the burden to prove that
Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as
earlier mentioned, no substantial evidence was presented by them to prove the same,
thereby warranting the CAs finding that petitioners failed to discharge such burden.
Furthermore, the Court is convinced that Paciencia was aware of the nature of her estate to
be disposed of, the proper objects of her bounty and the character of the testamentary act.

Suroza vs. Honrado

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10 SCRA 388 Succession Will Should be Written in a Language Known to the Testator
In 1973, Marcelina Suroza supposedly executed a notarial will bequeathing her house and
lot to a certain Marilyn Suroza. In 1974, Marcelina died. Marina Paje was named as the
executrix in the said will and she petitioned before CFI Rizal that the will be admitted to
probate. The presiding judge, Honrado admitted the will to probate and assigned Paje as the
administratrix. Honrado also issued an ejectment order against the occupants of the house
and lot subject of the will.
Nenita Suroza, daughter in law of Marcelina (her husband, son of Marcelina was confined in
the Veterans Hospital), learned of the probate proceeding when she received the ejectment
order (as she was residing in said house and lot).
Nenita opposed the probate proceeding. She alleged that the said notarial will is void
because (a) the instituted heir therein Marilyn Suroza is actually Marilyn Sy and she is a
stranger to Marcelina, (b) the only son of Marcelina, Agapito Suroza, is still alive and is the
compulsory heir, (c) the notarial will is written in English a language not known to Marcelina
because the latter was illiterate so much so that she merely thumbmarked the will, (d) the
notary public who notarized will admitted that Marcelina never appeared before him and
that he notarized the said will merely to accommodate the request of a lawyer friend but
with the understanding that Marcelina should later appear before him but that never
happened.
Honrado still continued with the probate despite the opposition until testamentary
proceeding closed and the property transferred to Marilyn Sy.
Nenita then filed this administrative case against Honrado on the ground of misconduct.
ISSUE: Whether or not Honrado is guilty of misconduct for admitting into probate a void will.
HELD: Yes. Despite the valid claim raised by Nenita, he still continued with the testamentary
proceeding, this showed his wrongful intent. He may even be criminally liable for knowingly
rendering an unjust judgment or interlocutory order or rendering a manifestly unjust
judgment or interlocutory order by reason of inexcusable negligence or ignorance.
The will is written in English and was thumb marked by an obviously illiterate Marcelina. This
could have readily been perceived by Honrado that that the will is void. In the opening
paragraph of the will, it was stated that English was a language understood and known to
the testatrix. But in its concluding paragraph, it was stated that the will was read to the
testatrix and translated into Filipino language. That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of
the mandatory provision of Article 804 of the Civil Code that every will must be executed in
a language or dialect known to the testator. Had Honrado been careful and observant, he
could have noted not only the anomaly as to the language of the will but also that there was
something wrong in instituting to Marilyn Sy as sole heiress and giving nothing at all to
Agapito who was still alive.
Honrado was fined by the Supreme Court.

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Payad vs. Tolentino

FACTS Victorio Payad filed a petition for the probate of the will of the decedent Leoncia
Tolentino. This was opposed by Aquilina Tolentino, averring that said Will was made only
after the death of the testatrix. The lower court denied the probate of the will on the ground
that the attestation clause was not in conformity with the requirements of the law since it
was not stated therein that the testatrix caused Atty. Almario to write her name at her
express direction. Hence, this petition.
ISSUE Was it necessary that the attestation clause state that the testatrix caused Atty.
Almario to write her name at her express direction?
HELD - The evidence of record establishes the fact the Leoncia Tolentino, assisted by
Attorney Almario, placed her thumb mark on each and every page of the questioned will and
that said attorney merely wrote her name to indicate the place where she placed said thumb
mark. In other words Attorney Almario did not sign for the testatrix. She signed by placing
her thumb mark on each and every page thereof. "A statute requiring a will to be 'signed' is
satisfied if the signature is made by the testator's mark." (Quoted by this court from 28 R. C.
L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore, that it was
not necessary that the attestation clause in question should state that the testatrix
requested Attorney Almario to sign her name inasmuch as the testatrix signed the will in
question in accordance with law.
Garcia v. Lacuesta
Facts:
1. The CA disallowed the probate of the will of Antero Mercado dated Jan 1943. The said will
was written in Ilocano dialect.
2. The will appears to have been signed by Atty. Florentino Javier who wrote the name of the
testator followed below by 'A ruego del testador' and the name of Florentino Javier. In effect,
it was signed by another although under the express direction of the testator. This fact
however was not recited in the attestation clause. Mercado also affixed a cross on the will.
3. The lower court admitted the will to probate but this order was reversed by the Court of
Appeals on the ground that the attestation failed to recite the facts surrounding the signing
of the testator and the witnesses.
Issue: Whether or not the attestation clause in the will is valid
HELD: NO the attestation is fatally defective for its failure to state that Antero or the
testator caused Atty. Javier to write the former's name under his express direction as
required by Sec. 618 of the Civil Procedure. Finally, on the cross affixed on the will by the
testator, the Court held that it is not prepared to liken the mere sign of a cross to a
thumbmark for obvious reasons- the cross does not have the trustworthiness of a
thumbmark so it is not considered as a valid signature.

Barut vs. Cabacungan

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Facts:

1.Pedro Barut applied for the probate of the will of Maria Salomon. It is alleged in the petition
that testatrix died on Nov. 1908 in Sinait, Ilocos Sur leaving the will dated March 3, 1907.
The said will was witnessed by 3 persons. From the terms it appears that the petitioner
received a larger part of decedent's property. After this disposition, the testatrix revoked all
other wills and stated that since she is unable to read nor write, the will was read to her and
that she has instructed Severino Agapan, one of the witnesses to sign her name in her
behalf.
2. The lower court ruled that the will is not entitled to probate on the sole ground that the
handwriting of the person who signed the name of the testatrix does not appear to be that
of
Agapan
but
that
of
another
witness.
Issue: Whether or not a will's validity is affected when the person instructed by a testator to
write
his
name
did
not
sign
his
name
HELD: No, it is immaterial who wrote the name of the testator provided it is written at her
request and in her present, and in the presence of the witnesses. This is the only
requirement under Sec. 618 of the Civil Code of procedure at that time.

Icasiano vs. Icasiano G.R. No. L-18979 June 30, 1964

Facts:
1. Celso Icasiano, filed a petition for the probate of the will of Josefa Villacorte and for his
appointment as executor thereof. It appears from the evidence that the testatrix died on
September 12, 1958. She executed a will in Tagalog, and through the help of her lawyer, it
was prepared in duplicates, an original and a carbon copy.
2. On the day that it was subscribed and attested, the lawyer only brought the original copy
of the will while the carbon duplicate (unsigned) was left in Bulacan. One of the witnesses
failed to sign one of the pages in the original copy but admitted he may have lifted 2 pages
simultaneously instead when he signed the will. Nevertheless, he affirmed that the will was
signed by the testator and other witnesses in his presence.
Issue: Whether or not the failure of one of the subscribing witnesses to affix his signature to
a page is sufficient to deny probate of the will
RULING: No, the failure to sign was entirely through pure oversight or mere inadvertence.
Since the duplicated bore the required signatures, this proves that the omission was not
intentional. Even if the original is in existence, a duplicate may still be admitted to probate
since the original is deemed to be defective, then in law, there is no other will bu the duly
signed carbon duplicate and the same can be probated. The law should not be strictly and
literally interpreted as to penalize the testatrix on account of the inadvertence of a single
witness over whose conduct she has no control of. Where the purpose of the law is to
guarantee the identity of the testament and its component pages, and there is no
intentional or deliberate deviation existed. Note that this ruling should not be taken as a
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departure from the rules that the will should be signed by the witnesses on every page. The
carbon copy duplicate was regular in all respects.

Abangan v Abangan

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FACTS:
-

Trial Court admitted Ana Abangans probate.

The will is described in the following manner:
o First sheet:
Contains all the disposition of the testatrix.
Signed at the bottom by Martin Montalban (in the name and under the
direction of Ana Abangan)
Signed by three witnesses
o Second sheet:
Contains only the attestation clause.
Duly signed by the same three witnesses at the bottom.
Was not signed by the testatrix herself
- Anastacia Abangan (different person) et al. appealed from this decision. She says
that the probate should have been denied on three grounds:
o Neither of the sheets were signed on the left margin by the testatrix and
the three witnesses
o The pages were not numbered by letters
o It was written in a dialect that the testatrix did not understand.
-

Issue: WON the probate should have been admitted.

Ruling: Yes. The trial court was correct in admitting the probate.

1. Re: signing on the left margin

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The object of Act 2645, which requires that every sheet should be signed on the left
margin, is only to avoid the substitution of any sheet, thereby changing the
dispositions of the testatrix.

- Act 2645 only took into consideration cases of wills written on several
sheets, which did not have to be signed at the bottom by the testator and the
witnesses.

- But when the dispositions are duly written only on one sheet, and signed at
the bottom by the testator and the witnesses, the signatures on the left would be
purposeless.

- If the signatures at the bottom already guarantee its authenticity, another

signature on the left margin would be unnecessary.

- This interpretation of Act 2645 also applies to the page containing the
attestation clause (the second sheet). Such a signature on the margin by the
witnesses would be a formality not required by the statute.

- It is also not required that the testatrix sign on the attestation clause
because the attestation, as its name implies, appertains only to the witnesses and
not the testator since the testator does attest, but executes the will.

2. Re: Page numbering

- Act 2645s object in requiring this was to know whether any sheet of the will
has been removed.

- But when all the dispositive parts of the will are written on one sheet only,
the object of the Act 2645 disappears because the removal of this single sheet
although unnumbered, cannot be hidden.

3. Re: dialect

- The circumstance appearing in the will itself that the same was executed in
the city of Cebu and in the dialect of this locality where the testatrix was a neighbor
is enough to presume that the will was written in a dialect that the testator knew,
absent any proof to the contrary.

Testate Estate of Cagro vs. Cagro

G.R. L-5826
Facts:
1. The case is an appeal interposed by the oppositors from a decision of the CFI of
Samar which admitted to probate a will allegedly executed by Vicente Cagro who
died in Pambujan, Samar on Feb. 14, 1949.
2. The appellants insisted that the will is defective because the attestation was not
signed by the witnesses at the bottom although the page containing the same was
signed by the witnesses on the left hand margin.
3. Petitioner contended that the signatures of the 3 witnesses on the left hand margin
conform substantially to law and may be deemed as their signatures to the
attestation clause.
Issue: Whether or not the will is valid
HELD: Will is not valid. The attestation clause is a memorandum of the facts
attending the execution of the will. It is required by law to be made by the attesting
witnesses and it must necessarily bear their signatures.
An unsigned attestation clause cannot be considered as an act of the witnesses since
the omission of their signatures at the bottom negatives their participation.
Moreover, the signatures affixed on the let hand margin is not substantial
conformance to the law. The said signatures were merely in conformance with the
requirement that the will must be signed on the left-hand margin of all its pages. If
the attestation clause is unsigned by the 3 witnesses at the bottom, it would be
easier to add clauses to a will on a subsequent occasion and in the absence of the
testator and any or all of the witnesses.
The probate of the will is denied.
G.R. L-5971 February 27, 1911
Ponente: Carson, J.:

Nera v. Rimando

'Test of Presence'
Facts:
1. At the time the will was executed, in a large room connecting with a smaller room
by a doorway where a curtain hangs across, one of the witnesses was in the outside
room when the other witnesses were attaching their signatures to the instrument.
2. The trial court did not consider the determination of the issue as to the position of
the witness as of vital importance in determining the case. It agreed with the ruling in
the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing
witnesses was in the outer room while the signing occurred in the inner room, would
not be sufficient to invalidate the execution of the will.
3. The CA deemed the will valid.
Issue: Whether or not the subscribing witness was able to see the testator
and other witnesses in the act of affixing their signatures.
HELD: YES
The Court is unanimous in its opinion that had the witnesses been proven to be in the
outer room when the testator and other witnesses signed the will in the inner room, it

would have invalidated the will since the attaching of the signatures under the
circumstances was not done 'in the presence' of the witnesses in the outer room. The
line of vision of the witness to the testator and other witnesses was blocked by the
curtain separating the rooms.
-

The position of the parties must be such that with relation to each other at the
moment of the attaching the signatures, they may see each other sign if they chose
to.
In the Jaboneta case, the true test of presence is not whether or not they actualy saw
each other sign but whether they might have seen each other sign if they chose to
doso considering their physical, mental condition and position in relation to each
other at the moment of the inscription of the signature.

- Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the late
Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it
was executed through fraud, deceit, misrepresentation, and undue influence. He
further alleged that the instrument was executed without the testator having been
informed of its contents and finally, that it was not executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on
the ground that there is substantial compliance with the legal requirements of having
at least 3 witnesses even if the notary public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805 and 806
of the NCC
HELD: NO.
The will is not valid. The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the said will.
An acknowledging officer cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent, admit, and
'before' means in front of or preceding in space or ahead of. The notary cannot split
his personality into two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting or
instrumental witnesses. He would be interested in sustaining the validity of the will as
it directly involves himself and the validity of his own act. he would be in an
inconsistent position, thwarting the very purpose of the acknowledgment, which is to
minimize fraud.

G.R. No. L-7179

Javellana vs. Ledesma

Facts:
1. The CFI of Iloilo admitted to probate a will and codicil executed by the deceased
Apolinaria Ledesma in July 1953. This testament was deemed executed on May 1950
and May 1952. The contestant was the sister and nearest surviving relative of the
deceased. She appealed from this decision alleging that the will were not executed
in accordance with law.
2. The testament was executed at the house of the testatrix. One the other hand, the
codicil was executed after the enactment of the New Civil Code (NCC), and therefore
had to be acknowledged before a notary public. Now, the contestant, who happens to
be one of the instrumental witnesses asserted that after the codicil was signed and
attested at the San Pablo hospital, that Gimotea (the notary) signed and sealed it on
the same occasion. Gimotea, however, said that he did not do so, and that the act of
signing and sealing was done afterwards.
2. One of the allegations was that the certificate of acknowledgement to the codicil
was signed somewhere else or in the office of the notary. The ix and the witnesses at
the hospital, was signed and sealed by the notary only when he brought it in his
office.
Issue: Whether or not the signing and sealing of the will or codicil in the
absence of the testator and witnesses affects the validity of the will
RULING: NO. Unlike in the Old Civil Code of 1899, the NCC does not require that the
signing of the testator, the witnesses and the notary be accomplished in one single
act. All that is required is that every will must be acknowledged before a notary

public by the testator and witnesses. The subsequent signing and sealing is not part
of the acknowledgement itself nor of the testamentary act. Their separate execution
out of the presence of the testator and the witnesses cannot be a violation of the rule
that testaments should be completed without interruption.
Cruz v. Villasor
G.R. L-32213 November 26, 1973
Ponente: Esguerra, J.:
Facts:
1. The CFI of Cebu allowed the probate of the last will and testament of the late
Valenti Cruz. However, the petitioner opposed the allowance of the will alleging that it
was executed through fraud, deceit, misrepresentation, and undue influence. He
further alleged that the instrument was executed without the testator having been
informed of its contents and finally, that it was not executed in accordance with law.
2. One of the witnesses, Angel Tevel Jr. was also the notary before whom the will was
acknowledged. Despite the objection, the lower court admitted the will to probate on
the ground that there is substantial compliance with the legal requirements of having
at least 3 witnesses even if the notary public was one of them.
Issue: Whether or not the will is valid in accordance with Art. 805 and 806
of the NCC
HELD: NO.
The will is not valid. The notary public cannot be considered as the third instrumental
witness since he cannot acknowledge before himself his having signed the said will.
An acknowledging officer cannot serve as witness at the same time.
To acknowledge before means to avow, or to own as genuine, to assent, admit, and
'before' means in front of or preceding in space or ahead of. The notary cannot split
his personality into two so that one will appear before the other to acknowledge his
participation int he making of the will. To permit such situation would be absurd.
Finally, the function of a notary among others is to guard against any illegal or
immoral arrangements, a function defeated if he were to be one of the attesting or
instrumental witnesses. He would be interested in sustaining the validity of the will as
it directly involves himself and the validity of his own act. he would be in an
inconsistent position, thwarting the very purpose of the acknowledgment, which is to
minimize fraud.
Testate Estate of Suntay
Facts:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing
the alleged will and testament executed in Manilaon November 1929, and the alleged
last will and testament executed in Kulangsu, Amoy, China, on 4 January 1931, by
Jose B. Suntay.The value of the estate left by the deceased is more than P50,000.On
14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in
the city of Amoy, Fookien province, Republicof China, leaving real and personal
properties in the Philippines and a house in Amoy, Fookien province, China, and
children by the firstmarriage had with the late Manuela T. Cruz namely, Apolonio,
Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose,Jr. and a child
named Silvino by the second marriage had with Maria Natividad Lim Billian who
survived him. Intestate proceedingswere instituted in the Court of First Instance of
Bulacan (special proceedings No. 4892) and after hearing letters of administration
wereissued to Apolonio Suntay. After the latter's death Federico C. Suntay was
appointed administrator of the estate. On 15 October 1934the surviving widow filed a
petition in the Court of First Instance of Bulacan for the probate of a last will and
testament claimed to have been executed and signed in the Philippines on November
1929 by the late Jose B. Suntay. This petition was denied because of theloss of said
will after the filing of the petition and before the hearing thereof and of the
insufficiency of the evidence to establish the lossof the said will. An appeal was taken
from said order denying the probate of the will and this Court held the evidence
before the probatecourt sufficient to prove the loss of the will and remanded the case
to the Court of First Instance of Bulacan for the further proceedings(63 Phil., 793). In

spite of the fact that a commission from the probate court was issued on 24
April 1937 for the taking of the depositionof Go Toh, an attesting witness to the will,
on 7 February 1938 the probate court denied a motion for continuance of the hearing
sent by cablegram from China by the surviving widow and dismissed the petition. In
the meantime the Pacific War supervened. After liberation, claiming that he had
found among the fi les, records and documents of his late father a will and
testament in Chinese characters executed and signed by the deceased on
4 January 1931 and that the same was fi led, recorded and probated in the
Amoy districtcourt, Province of Fookien, China, Silvino Suntay filed a petition in
the intestate proceedings praying for the probate of the will executedin the
Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N).
Issue: (1) W/N thw lost will can be probated; (2) W/N a will probated in China can be
acknowledged in the Philippines.
Ruling: (1) NO. As to the lost will, 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, under the
seal of the court, and the certificate must be filed and recorded as other wills are filed
and recorded.
(2) As to the will claimed to have been executed on 4 January 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 2
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. 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. There is no
proof on these points. The unverifi ed answers to the questions propounded
by counsel for the appellant to the Consul General of the Republic of China set forth
in Exhibits R-1 and R-2, objected to by counsel for the appellee, 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. Moreover, it appears that all 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 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. 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 inthe 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 districtcourt of Amoy,
China, may be likened toe or come up to the standard of such proceedings in the

Philippines for lack of notice to allinterested parties and the proceedings were held at
the back of such interested parties.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 probator allowance of a will and,
therefore, the will referred to therein cannot be allowed, fi led and
recorded by a competent court of this country.
-

Ortega v.Valmonte

FACTS:
Two years after the arrival of Placido from the United States and at the age of 80 he
wed Josefina who was then 28 years old. But in a little more than two years of
wedded bliss, Placido died. Placido executed a notarial last will and testament written
in English and consisting of 2 pages, and dated 15 June 1983but acknowledged only
on 9 August 1983. The allowance to probate of this will was opposed by Leticia,
Placidos sister. According to the notary public who notarized the testators will, after
the testator instructed him on the terms and dispositions he wanted on the will, the
notary public told them to come back on 15 August 1983 to give him time to prepare.
The testator and his witnesses returned on the appointed date but the notary public
was out of town so they were instructed by his wife to come back on 9 August 1983.
The formal execution was actually on 9 August 1983. He reasoned he no longer
changed the typewritten date of 15 June 1983 because he did not like the document
to appear dirty. Petitioners argument: 1. At the time of the execution of the notarial
will Placido was already 83 years old and was no longer of sound mind. 2. Josefina
conspired with the notary public and the 3 attesting witnesses in deceiving Placido to
sign it. Deception is allegedly reflected in the varying dates of the execution and the
attestation of the will.
ISSUE:
1. W/N Placido has testamentary capacity at the time he allegedly executed the will.
2. W/N the signature of Placido in the will was procured by fraud or trickery.
HELD:
1. YES. Despite his advanced age, he was still able to identify accurately the kinds of
property he owned, the extent of his shares in them and even their location. As
regards the proper objects of his bounty, it was sufficient that he identified his wife as
sole beneficiary. The omission of some relatives from the will did not affect its formal
validity. There being no showing of fraud in its execution, intent in its disposition
becomes irrelevant.
2. NO. Fraud is a trick, secret devise, false statement, or pretense, by which the
subject of it is cheated. It may be of such character that the testator is misled or
deceived as to the nature or contents of the document which he executes, or it may
relate to some extrinsic fact, in consequence of the deception regarding which the
testator is led to make a certain will which, but for fraud, he would not have made.
The party challenging the will bears the burden of proving the existence of fraud at
the time of its execution. The burden to show otherwise shifts to the proponent of the
will only upon a showing of credible evidence of fraud. Omission of some relatives
does not affect the due execution of a will. Moreover, the conflict between the dates
appearing on the will does not invalidate the document, because the law does not
even require that a notarial will be executed and acknowledged on the same
occasion. The variance in the dates of the will as to its supposed execution and
attestation was satisfactorily and persuasively explained by the notary public and
instrumental witnesses.