G.R. No.

L-2108 December 18, 1905

JUANA PIMENTEL, plaintiff-appellant,
vs.
ENGRACIO PALANCA, as administrator of the estate of Margarita Jose, deceased, ET AL.,
defendants-appellees.
Del-Pan, Ortigas and Fisher for appellant.
M. Caringal and R. del Rosario for appellees.

WILLARD, J.:
Margarita Jose, a native and citizen of the Philippine Islands, died in the city of Amoy, China, on the
4th of February, 1902. Her last will was duly proved and allowed in the Court of First Instance of
Manila on the 15th day of April, 1902, and on the same day Engracio Palanca was duly appointed
administrator of the estate of the deceased. He entered upon the discharge of his duties as such
administrator, and is still engaged therein. As far as appears from the bill of exceptions the estate still
remains unsettled, and no final decree has ever been entered therein.
By her said will Margarita Jose left all her property, amounting to over 50,000 pesos, to her two
children, Vicente Barreto, alias Tan-Keng, and Benito Carlos, alias Doon. On the 8th day of July,
1902, Juana Pimentel, the mother of said Margarita Jose, commenced this, an ordinary action, in the
Court of First Instance of Manila, alleging that the two children of Margarita Jose were illegitimate,
and that she was the heir at law and entitled to the whole estate. The prayer of the original complaint
was that the plaintiff be declared the lawful heir and entitled to all the property of her daughter,
Margarita Jose.
The defendant named in this original complaint was the "Estate of Doa Margarita Jose." The
summons in the action was served upon the administrator, Engracio Palanca. He appeared and
demurred, on the ground, among others, that there was a defect of parties, and that the two sons
should have been made defendants. This demurrer was overruled. He took an exception to the
overruling of the demurrer, and answered, denying generally the facts state in the complaint. A trial
was had in the Court of First Instance, and judgment was entered in favor of the defendant on the
28th of July, 1903, the court holding that Vicente Barreto was the legitimate son of Margarita Jose.
Plaintiff made a motion for a new trial, which was granted on the 15th day of September, 1903. On
the 22nd day of January, 1904, the plaintiff presented an amended complaint, naming as defendants
Engracio Palanca, as administrator of the estate of margarita Jose, and Benito Carlos and Vicente
Barreto. The prayer of that complaint is as follows:
Por todo lo expuesto la demandante pide al Juzgado:
(a) Que la legalizacion de dicho testamento sea revocada y anulada;
(b) Que la institucion de los demandados Vicente barreto alias Tan-Keng y Benito
Carlos alias Doon como herederos en dicho testamento sea declarada nula por razon de la
pretericion de un heredero forzoso.

(c) Que la demandante sea declarada heredera de tres cuartas partes de los bienes de los
cuales era duea la citada Margarita Jose al tiempo de su fallecimiento.
(d) Que el nombramiento de administrador conferido por virtud del auto del Juzgado a favor
del demandado Engracio Palanca sea anulado;
(e) Que el demandado Engracio Palanca como tal administrador sea requerido a rendir
cuentas de su administracion y a depositar en el Juzgado todo el dinero que tenga en su
poder perteneciente a los herederos de la citada difunta;
(f) Que el Juzgado conceda a la demandante cualquier otro remedio adecuado y equitativo.
The defendants all answered the amended complaint. A trial was had in the court below, and on the
7th of April, 1904, judgement was entered in favor of the defendants. The court held that Vicente
Barreto was the legitimate son of Margarita Jose; that Benito Carlos was an illegitimate son, and that
Margarita Jose had a right to bequeath her property to these sons to the exclusion of the plaintiff. He
held also that the plaintiff, not having appealed from the probate of the will, could not maintain this
action.
We think that judgment should be entered for the defendants, but not upon the ground stated in the
decision of the court below.
The will of Margarita Jose was made and she died after the present Code of Civil Procedure went
into effect in these Islands. Her will was duly proved and allowed under the provisions of that code.
An administrator was duly appointed and he is now engaged in settling the affairs of the estate. The
important question in this case is, Can an ordinary action at law be maintained under these
circumstances by a person claiming to be an heir of the deceased against other persons, also
claiming to be such heirs, for the purpose of having their rights in the estate determined? We think
that such an action is inconsistent with the provisions of the new code, and that it can not be
maintained. Section 600 of the present Code of Civil Procedure provides that the will of an inhabitant
of the Philippine Islands shall be proved and his estate settled in the Court of First Instance in which
he resided at the time of his death. By section 641 when a will is proved it is obligatory upon the
court to appoint an executor or administrator. By virtue of other provisions of the code this executor
or administrator has, under the direction of the court, the full administration and control of the
deceased's property, real and personal, until a final decree is made in accordance with section 753.
During the period of administration the heirs, devisees, and legatees have no right to interfere with
the administrator or executor in the discharge of his duties. They have no right, without his consent,
to the possession of any part of the estate, real or personal. The theory of the present system is that
the property is all in the hands of the court, and must stay there until the affairs of the deceased are
adjusted and liquidated, and then the net balance is turned over to the persons by law entitled to it.
For the purpose of such administration and distribution there is only one proceeding in the Court of
First Instance. That proceeding is not an action of law, but fall under Part II of the Code of Civil
Procedure, and is a special proceeding. After the estate is fully settled, and all the debts and
expenses of administration are paid, the law contemplates that there shall be a hearing or trial in this
proceeding in the Court of First Instance for the purpose of determining who the parties are that are
entitled to the estate in the hands of the executor or administrator for distribution, and after such
hearing or trial it is made the duty of the court to enter a decree or final judgment, in which decree,
according to section 753, the court "shall assign the residue of the estate to the persons entitled to
the same, and in its order the court shall name the persons and proportions or parts to which each is

entitled." (See also sec. 782 of the Code of Civil Procedure.) By section 704 it is expressly provided
that no action shall be maintained by an heir or devisee against an executor or administrator for the
recovery of the possession or ownership of lands until there is a decree of the court assigning such
lands to such heir or devisee, or until the time allowed for paying debts has expired.
It seems clear from these provisions of the law that while the estate is being settled in the Court of
First Instance in a special proceeding, no ordinary action can be maintained in that court, or in any
other court, by a person claiming to be the heir, against the executor or against other persons
claiming to be heirs, for the purpose of having the rights of the plaintiff in the estate determined. The
very purpose of the trial or hearing provided for in section 753 is to settle and determine those
questions, and until they are settled and determined in that proceeding and under that section no
action such as the present one can be maintained.
An examination of the prayer of the amended complaint above quoted will show that to grant it would
be to prevent the settlement of the estate of a deceased person in one proceeding in the Court of
First Instance. It would require, in the first place, the revocation of the judgment probating the will.
This relief can not be obtained in an ordinary action. The plaintiff not having appealed from the order
admitting the will to probate, as she had a right to do, that order is final and conclusive. It does not,
however, as the court below held, determine that the plaintiff is not entitled to any part of the estate.
The effect of such a decree was stated in the case of Castaedavs. Alemany 1 (2 Off. Gaz., 366).
The statements there made need not be repeated here. The plaintiff in her amended complaint asks
also that the appointment of Engracio Palanca be annulled. This relief can not be granted in an
ordinary action. The plaintiff had a right to appeal from the order of the court appointing the
administrator in this case, and not having exercised that right such order is final and conclusive
against her. The plaintiff also asks that the administrator be required to render an account to her of
his administration, and deposit in court the money which he has in his possession. To grant this relief
in an ordinary action between parties would be to take away from the court having in charge the
settlement of the estate the express powers conferred upon it by law. To grant that part of the prayer
of the amended complaint which asks that the plaintiff be declared to be entitled to three-fourths of
the property of the estate, would be to take away from the court administering the estate the power
expressly given to it by section 753 to determine that question in the proceeding relating to the
estate.
The judgment of the court below is reversed, and after the expiration of twenty days judgment should
be entered in accordance herewith and the case remanded to the court below, with instructions to
dismiss the same, with costs, but without prejudice to the right of the plaintiff to present her claims in
the special proceeding relating to the administration of the estate, when the final decree is made
therein under section 753. No costs will be allowed in this court. So ordered.

G.R. No. L-4724 December 24, 1909

GREGORIA MONTAANO,Plaintiff-Appellant, vs. SILVESTRE SUESA,Defendant-Appellee.
Mariano Lim for appellant.
Benito Gimenez-Zboli for appellee.
MAPA, J.:
Contrary to the claims of the appellant as argued at length in her brief, the evidence presented in this
case can not be reviewed by this court. She intervened and filed a complaint alleging that she was
the owner of two parcels of land that had been attached as being the property of Catalino
Montaano, by virtue of an order of execution issued in an action brought against him by the
defendant herein in an action brought against him by the defendant herein, Silvestre Suesa. The
appellant was defeated in the first instance, and excepted to the judgment, moving later on for a new
trial on the ground that the said judgment was contrary to the weight of the evidence adduced in the
case. Her motion for a new trial was presented on January 20, 1908, and on the 31st of the same
month the bill of exceptions which has been submitted to this court was filed. No ruling whatever
appears to have been made on said motion, consequently no provision was made to except thereto
in the event it were overruled. The motion not being overruled and duly excepted to, this court can
not review the evidence in the case; it can only base its decision on the facts found to have been
proven in the judgment appealed from, and admitted by the parties in their respective briefs. (Sec.
497, Code of Civil Procedure, as amended by Act No. 1596; Hijos de I. de la Rama vs. Robles and
Robles, 8 Phil. Rep., 712.) chanrobles virtual law library
According to the judgment the following facts have been proven:
That the property described in the complaint was owned by the late Catalino Montaano, father of
the plaintiff Gregoria Montaano; that prior to this death the said Catalino Montaano executed his
last will and testament, by which he declares his children Gregoria, Catalino, and Manuel
Montaano, to be heirs to the property left by him in the shares or portions respectively designated
in the said will; that the said will was duly authenticated on the 2d of February, 1906, and the
defendant herein, Silvestre Suesa, being appointed administrator of the estate, presented an
inventory of the property left by Catalino Montaano sr., deceased; that in numbers 8 and 38 of the
said inventory the two parcels of land in controversy are described; that the plaintiff has endeavored
to prove that the parcels of land claimed in her complaint were ceded to her as a gift by her father,
Catalino Montaano, during his lifetime, and that she had never since been in possession thereof,
but while these facts have not been fully demonstrated, on the other hand it appears by the evidence
and the will executed by Catalino Montaano, sr., that the person whom he designated to inherit the
parcels of land-referred to was his son Catalino, parcels of land situated in other barrios being left to
the plaintiff Gregoria Montaano.
Lastly, it was held in the judgment that the evidence adduced by the plaintiff, both documentary and
oral,
does
not
establish
her
pretended
ownership
to
the
property
in
question.chanroblesvirtualawlibrary chanrobles virtual law library

Accordingly to the foregoing considerations of the lower court not only has the plaintiff failed to prove
that she is the owner of the lands in controversy, but there is positive evidence that they belong to
her brother Catalino, against whom they were attached. In the opinion of the court below this
evidence consists of the duly authenticated will of the late Catalino Montano, their ancestor, in which
it is set forth that said lands were willed by the testator to his son Catalino, entirely different parcels
being assigned to the plaintiff herein. With reference to this point the judge below expresses himself
in the following terms:
As the will executed by Catalino Montaano, sr., was duly authenticated, and the portion of the
property left by the testator corresponding to each one of his heirs being stated therein, one must
necessarily conclude that the latter are entitled to make their own those properties indicated in the
said will in the manner provided by the testator himself. If, therefore, Catalino Montaano was
instituted heir under said will of the two parcels of land describe in paragraph 1 of the complaint, it is
unquestionable that no one but him can be recognized as the owner thereof, by title of inheritance
from his father Catalino Montaano.
The appellant maintains that the trial erred in attributing such probatory force to the testamentary
provisions of the late Catalino Montaano from the mere fact that his will had been authenticated,
because as she states, although it is true that it is conclusive with respect to the proper execution of
the same, and as to the capacity of the testator, yet, according to the doctrine set up in the matters
of Castaeda vs. Alemany (3 Phil Rep., 426) and Pimentel vs. Palanca (5 Phil. Rep., 436), it is not
so
with
regard
to
the
validity
of
the
provisions
therein
contained.chanroblesvirtualawlibrary chanrobles virtual law library
The true import and meaning of this doctrine is by its own terms so clear and precise that any further
explanation seems unnecessary. The authentication of a will decides no other questions than such
as touch upon the capacity of the testator and the compliance with those requisites or solemnities
which the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity of efficiency of the provisions; these may be impugned as being vicious or null,
notwithstanding its authentication. The questions relating to these points remain entirely unaffected,
and may be raised even after the will has been authenticated. This is not the case, however, with
regard to the proper execution thereof, as in view of the fact that it constitutes the proper and special
subject-matter thereof, it acquires by virtue thereof, the character of res adjudicata, and judicial
question in connection therewith being for once and forever closed. Such is the reason of the
doctrine invoked by the appellant, which evidently is not susceptible of the interpretation which she
seems to have attributed in her brief.chanroblesvirtualawlibrary chanrobles virtual law library
From the fact that the legalization of a will does not validate the provisions therein contained, it does
not follow that such provisions lack the efficiency, or fail to produce the effects which the law
recognizes when they are not impugned by anyone. In matter of wills it is a fundamental doctrine
that the will of the testator is the law governing the interested parties, and must be punctually
complied with in so far as it is not contrary to the law or to public morals. With respect to the partition
of the inheritance, there is the definite provision of law that when the testator makes such partition by
an act inter vivos or by a last will, it shall be accepted in so far as it does not prejudice the legal
portion of the heirs by force of law. (Art. 1056, Civil Code.) chanrobles virtual law library
From this follows that, as the testator, Montaano, had by his will partitioned his property and
assigned to his son Catalino, as his portion, the lands in question herein, the said testamentary
provision, being binding on the heirs, constitutes prima facie evidence that the said lands were

actually inherited by Catalino, and not by the plaintiff herein; other property was assigned to her in
payment of her legal portion. Therefore, the trial judge committed no error of law when he
considered said evidence in the sense that he has done, inasmuch as it has not been proven, nor
has any attempt been made to prove that the said testamentary provisions was impugned or
annulled,
or
that
it
has
ceased
to
be
effective
for
any
reason
whatever.chanroblesvirtualawlibrary chanrobles virtual law library
The judgment appealed from is hereby affirmed with the costs of this instance against the appellant.
So ordered.
G.R. No. L-10027

November 13, 1915

ROSENDO HERNAEZ y ESPINOSA, plaintiff-appellant,

vs.
MATEO HERNAEZ y ESPINOSA, ET AL., defendants-appellants.
Ruperto Montinola for plaintiff.
Enrique C. Locsin for defendants.

TRENT, J.:
The spouses, Pedro Hernaez and Juana Espinosa, died, leaving several legitimate descendants.
Neither of their estates had been divided up to the date of the institution of this action, but were both
under administration. Their son, Domingo Hernaez y Espinosa, sold all his interest in both his
father's and mother's estate to his son, Vicente Hernaez y Tuason, on November 6, 1901.
Notwithstanding the fact that Domingo Hernaez y Espinosa had thus parted with all his interest in the
estates of his two parents, he executed a document of sale in favor of Alejandro Montelibano y
Ramos on February 27, 1907, in which he purported to convey all his undivided interest in his
mother's estate. On the same date he executed another document of sale in which he purported to
convey to Jose Montelibano Uy-Cana four-eighteenths of his interest in his mother's estate. Both of
these sales were made with the connivance of his son, Vicente Hernaez y Tuason. Hence, although
Vicente Hernaez y Tuason had actually purchased all of his father's interests in the estates of Pedro
Hernaez and Juana Espinosa as early as November 6, 1901, and was, on February 27, 1907, the
undoubted owner thereof, he is effectually estopped from asserting his title as against either of the
vendees mentioned in the documents of sale dated February 27, 1907, to which we have just
referred. (Code Civ. Pro., sec. 333, No. 1.) Bigelow on Estoppel (p. 607) says:
. . . it is now a well-established principle that where the true owner of property, for however
short a time, holds out another, or, with knowledge of his own right, allows another to appear
as the owner of or as having full power of disposition over the property, the same being in the
latter's actual possession, and innocent third parties are thus led into dealing with such
apparent owner, they will be protected.
On August 19, 1912, Jose Montelibano Uy-Cana sold his interest in the estate to Alejandro
Montelibano y Ramos. By this transfer, the latter stood owner of all the interest of Domingo Hernaez
y Espinosa in the estate of Pedro Hernaez, and five-eighteenths of his interest in the estate of Juana
Espinosa as against Vicente Hernaez y Espinosa.

It is admitted that Rosendo Hernaez y Espinosa, another son of the deceased spouses administrator
of the estates, was notified of Montelibano's purchases on January 8, 1913, when he received notice
of Montelibano's motion, entered in the administration proceedings, asking that he (Montelibano) be
substituted as assignee of the interests of various heirs of the estate which he had acquired by
purchase. Notwithstanding this knowledge, Rosendo Hernaez y Espinosa entered into a contract of
sale with Vicente Hernaez y Tuason, whereby the latter purported to convey all the interest, which he
had acquired from his father, in the estate of the deceased spouses, Pedro Hernaez and Juana
Espinosa. It will be remembered that he purchased his father's share of the estate on November 6,
1901; that he is estopped from asserting title to any interest in his grandfather's estate and in fiveeighteenths of his grandmother's estate. Rosendo Hernandez y Espinosa purchased with full
knowledge of these facts. He, therefore, acquired thirteen-eighteenths of the interest of Domingo
Hernaez y Espinosa in the estate of the latter's mother nothing more.
lawph!l.net

That rule is that the holder [Alejandro Montelibano y Ramos] of a prior equitable right has
priority over the purchaser [Rosendo Hernandez y Espinosa] of a subsequent estate
(whether legal or equitable) without value, or with notice of the equitable right, but not as
against a subsequent purchaser for value and without notice. (Ewart on Estoppel, p. 199.)
Alejandro Montelibano y Ramos has acquired in his interest in the estate of the deceased spouses
for a valuable consideration and in good faith, and there remains to the plaintiff, Rosendo Hernaez y
Espinosa, only the right of subrogation allowed him by article 1067 of the Civil Code, which reads as
follows:
If any of the heirs should sell his hereditary rights to a stranger before the division, all or any
of the co-heirs may subrogate himself in the place of the purchaser, reimbursing him for the
value of the purchase, provided they do so within the period of a month, to be counted from
the time they were informed thereof.
On January 24, 1913, the plaintiff instituted this action seeking to subrogate himself in the rights
acquired by Montelibano in the estate. Unless the plaintiff can be charged with actual notice of the
conveyance by which Montelibano acquired these interests, prior to January 8, 1913, it is clear that
he has opportunely asserted his right of subrogation. This is purely a question of fact. As to the sales
whereby Domingo Hernaez y Espinosa parted with that portion of his interest in the estate which is
now held by Alejandro Montelibano, as well as to those sales made by other heirs to Montelibano,
the trial court found that the plaintiff, Rosendo Hernaez y Espinosa, was not chargeable with notice
prior to January 8, 1913. After a careful examination of the record we see no reason for disturbing
this finding of fact. As a consequence, the plaintiff, Rosendo Hernaez y Espinosa, is entitled to
exercise his right of subrogation in accordance with article 1067, above quoted.
lawph!1.net

The interest which Jose Montelibano Uy-Cana purchased from Domingo Hernaez y Espinosa on
February 27, 1907, for the sum of P4,500, he afterwards transferred to Alejandro Montelibano y
Ramos for the sum of P10,000. In rendering judgment, the trial court decreed that the plaintiff,
Rosendo Hernaez y Espinosa, should pay the latter sum for the privilege of exercising the right of
subrogation. This was error. Article 1067 of the Civil Code provides that the co-heir may exercise this
right of subrogation upon the payment to the purchaser of another heir's interest, "el precio de la
compra" (the purchase price). Obviously, if the interest had not been resold, the plaintiff, Rosendo
Hernaez y Espinosa, would have had to pay only the price for which Uy-Cana acquired it. The
purpose of the article cannot be evaded by a reconveyance of the interest to a third person at a

higher price. Subsequent purchasers of the interest acquire it burdened with the right of subrogation
of co-heirs at the price for which the heir who sold it parted with it.
It is urged that the prices in some of the deeds of sale by which Alejandro Montelibano y Ramos
purchased the interest of various heirs in the estates are fictitious. This is a question of fact upon
which both parties adduced evidence, and we concur in the opinion of the trial court that there is no
basis to the charge. For the foregoing reasons, the judgment of the court is modified by substituting,
as the price of subrogation of the interest originally purchased by Jose Montelibano Uy-Cana, the
sum of P4,500, as set out in Exhibit 7, for the sum of P10,000, the consideration expressed in
Exhibit 10. As modified, the judgment appealed from is affirmed, without costs. So ordered.

G.R. No. L-4029 January 25, 1908

In the matter of the will of DOMINGA BUTALID. - Probate proceedings. - GAUDENCIO
MENDOZA, petitioner-appellant.
J. Clarin for appellant.
B. Reyes for appellee.
ARELLANO, C.J. :chanrobles virtual law library
On November 17, 1905, Gaudencio Mendoza, as executor of Dominga Butalid, who died on the 17th
of October of the same year, filed with the Court of First Instance, for its allowance and other probate
proceedings, a will said to have been executed by the latter person on the 16th day of September of
the same year.chanroblesvirtualawlibrary chanrobles virtual law library
Upon publication of the notice of the petition, Esteban Lumain y Butalid, Esteban Butalid, Nicolas
Butalid, and Corcela Butalid, nephews and niece, respectively, and heirs of the deceased Dominga
Butalid, appeared in court and contested the will, alleging "that the said Dominga Butalid, at the date
of the execution of the said document, was not in the free use of her intellectual powers, on the
following grounds, to wit: That the above-mentioned Dominga Butalid, then about 90 years old, was
lying in bed seriously ill, senseless, and unable to utter a single words, so that she did not know what
she was doing when she executed the will; that this document was executed under the influence and
by the direction of Gaudencio Mendoza, as one of the heir designated in said will."chanrobles virtual
law library
An issue having been raised by this contest, the trial was commenced, both parties presenting their
respective oral evidence, besides the documentary evidence exhibited by the
petitioner.chanroblesvirtualawlibrary chanrobles virtual law library
This documentary proof consists of a will formerly executed by the said Dominga Butalid in the
presence of Jose Conui y Vicente, a notary public in the Province of Bohol, and the number of
witnesses required by law; it was dated March 31, 1897, and written on stamped paper of the fifth
class, current term, the document on record being the first original copy issued with the formalities of
the law to the testatrix by the same notary. According to this testament, executed with all the
requirements prescribed by the law then in force, the testatrix, Dominga Butalid, as shown by her
cedula exhibited to the notary, and from which her personal description was taken, was at that time

76 years old and had made her last will in twelve clauses, in the following manner: First, as to her
personal circumstances, she declared that she was single, that her father and mother were dead,
and that she could freely dispose of her estate; second, in regard to the designation of her heirs, she
stated that not having any obligatory heir, she designated as heirs Juanita Mendoza y Butalid,
Januaria Mendoza y Butalid, Gaudencio Mendoza y Butalid, and in representation of Margarita
Butalid, deceased, the children of the latter named Jose, Nicolas, Jacinto, Felix, Leogario, Maria,
Ostoquia, and Emelda, all surnamed Clarin y Butalid; third, as to the legacies, she left some to
Ciriaca
Mendoza
y
Butalid,
Eduarda
Galab,
Maria
Quelelo,
and
Saturnina
Loquento.chanroblesvirtualawlibrary chanrobles virtual law library
This will existing, duly executed in a solemn manner on the said date of March 31, 1897, another will
appears, dated the 16th of September, 1905, which is the one contested, the same having been
executed in conformity with the law in force, and consisting of ten clauses, the second of which
corresponds to the second clause of the former will, and, like the other, relates to the testatrix's
personal circumstances; and the third clause, concerning the designation of heirs, is also an exact
transcription of the corresponding clause in the other will. There are, therefore, instituted as heirs in
the second will the same persons who were designated as such in the first, and the last will is almost
the same in its fourth clause, but with the following discrepancies: (1) To Juanita Mendoza there
were allotted in the first will, besides other property bequeathed to her in the second will, 50 head of
cattle in the pueblo of Carmen, and 3 mango trees in Cogon, within the municipality of the capital,
while by the second will the 50 head of cattle were omitted and replaced by 60 mango trees planted
in Cogon, Mansasa, Bohol, and Manga, within the municipality, the capital of the province, and in the
sitios of Sunculan and Tutula, within the municipality of Danis; (2) by the first will Gaudencio
Mendoza y Butalid was to receive 50 head of cattle, Januaria Mendoza another 50 head of cattle,
and the children of the late Margarita Butalid were also to receive an equal number of head of cattle,
besides other property bequeathed to Januaria and to the Clarin family under both wills, while in the
second will the allotments of cattle was suppressed; (3) in regard to legacies, those contained in the
first will, in favor of Eduarda Galab and Saturnina Loquente, servants of the testatrix, and consisting
of one head of cattle to each, were revoked by the will; (4) according to a the ninth clause of the first
will, Eduardo Calceta was indebted in the sum of P800, which he was to pay in equal parts to the
heirs, and according to the second will, (clause 8) said debt was reduced to P300, to be paid to the
same heirs and in a similar manner; (5) the sixth clause of the first will is contained in the fifth clause
of the second, and the sixth clause of the latter will is to be found in the fifth clause of the former; the
last three clauses in the first will were suppressed, the tenth clause of the second will being that in
which the testatrix requests Mateo Rocha to sign in her place. So that the terms of the first will,
solemnly executed in the presence of a notary public and the required number of witnesses, are
substantially preserved in their entirety, and by the clauses of this will neither the other nephews and
niece of the testatrix nor the other parties contesting the same are in any wise favored with the
exception of those who are designated as heirs or legatees, whose shares are alike in both will. And
with reference to Gaudencio Mendoza, who, in the last will, is appointed executor, and in the first will
was to receive one-fourth part of the estate and a certain portion of property, the last will entitles him
to only an even portion of the property mentioned in its fifth clause (formerly the sixth clause), by the
terms of which it is ordered that the whole number of cattle be equally distributed among the four
heirs.chanroblesvirtualawlibrary chanrobles virtual law library
Such are the terms and the legal nature oaf the two wills, which must not be overlooked in
discussing the purpose of the action brought by the so-called nephews and niece of the late
testatrix.chanroblesvirtualawlibrary chanrobles virtual law library

Everything relating to the terms of the will, its date and signature by the witnesses having been
established, the same is contested on the following grounds: That the testatrix was about 90 years
old, and according to the cross- examination she was 100 years old or was at least 93 years of age;
that she was lying in her bed, seriously ill, senseless, and unable to speak a single word, in such
condition that when she executed the will she did not know what she was doing, and according to
the testimony of the witnesses her body was bent and she could only walk with the help of a walking
stick.chanroblesvirtualawlibrary chanrobles virtual law library
In opposition to the first allegation mentioned above, we find, in the will executed in 1897, that
according to the cedula of the testatrix the notary public stated therein that she was then 76 years
old, so that in 1905 she must have been 84 years of age only.chanroblesvirtualawlibrary chanrobles
virtual law library
In regard to the second allegation it is admitted that the contested will was, according to the
witnesses subscribing the same, executed on the afternoon of Saturday, the 16th of September, and
that on the following morning the holy viaticum was administered to the testatrix though her death
did not occur until the 18th of the following October.chanroblesvirtualawlibrary chanrobles virtual law
library
The witnesses for the contesting parties, brought before the court to show the state of the things and
chiefly the mental condition of the testatrix during those two days, are Filomena Lumay, Guillerma
Taporoc, and Esteban Dalap. The first witness testified only that she could not hear the testatrix
making any answer; the second speaks about groans of the testatrix, and this witness seems to be
the only one to refer to this detail, as though she wished to certify the mental incapacity of the
patient; although said witness asserts that the testatrix, when questioned with these words " ima,
ima, what hurts you," replied with groans, and the same witness when cross-examined as to whether
or not the patient became angry when her body was being rubbed, the former said that on the
contrary, the patient thanked her for it. The third witness, sacristan of the parish, who assisted the
priest in the administration of the viaticum, although he tended to corroborate the state of
unconsciousness of the patient on the day following the date of the execution of the will, by his
testimony he has nevertheless demonstrated to the contrary, because he states that, when
the viaticum was administered, to the ritual questions regarding her religious creed (although the
witness in his capacity of sacristan was obligated to reply), the patient answered "yes, I believe," "I
believe in it;" and the witness, being pressed by the counsel for the contesting parties, recited
textually in his own dialect the words used by the patient in her reply to the priest; he further testified
that the patient confessed to the priest on the previous night, and about this he was very sure; and it
being the point under discussion, that on Sunday the will was not executed, the witness testified that
when he was gathering together the paraphernalia used for the viaticum he overheard Jose Bautista,
the person who wrote the will, "questioning the patient about the number of mango trees," which
could
not
have
taken
place
if
the
patient
were
truly
in
a
senseless
condition.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Hernaez vs. Hernaez, 1 decided by this court, the base of impugnment was that the
testatrix, on the date of the execution of the will, was more than 80 years old and was so ill that she
had received the sacraments three days before, and two days later she died; that some time before
her form was bent, and that she used to give contradictory orders on account of her senile
weakness; an attempt was made to prove that the testatrix was so seriously ill that she could not
speak; that, on account of her old age, she walked with her body bent and used to give contradictory
orders, and that, when she received the sacraments, she could not be understood when she spoke.

This court, however, laid down the doctrine that a presumption exists in favor of the sanity of the
testator, and the obligation to prove the mental incapacity of the latter rests upon the party opposing
the probate of the will.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, it does not appear as proven, not even by the witnesses for the opposing party, that the
testatrix was more than 100, or 93, or even 90 years old, that she was seriously ill, and that she
could not speak a word; rather quite the contrary appears from a disinterested consideration of the
declarations made by two of these witnesses, who state facts which do not show any lack of
intelligent continuity of purpose. The four witnesses to the will unanimously affirm the perfectly sane
condition of the testatrix, no positive contradiction or reason making their testimony incredible
appearing from the record. It has not been shown up to the present why it should not be
believed.chanroblesvirtualawlibrary chanrobles virtual law library
Against the testimony of Mateo Rocha it is said in the brief of the appellees that he could not
determine at once the number of doors in the room of the deceased; that he said first that he had
written the will, and afterwards that he had not; that the deceased was able to leave her bed, while
the other witnesses state that she could only move her head; that he was frightened when he knew
that the will was to be impugned. In all of this, the important question is the one relating to the
person who wrote the last will, regarding which the existence of the contradiction is not true; this
witness repeatedly declared that the one who wrote the will was Juan Bautista, who read the former
will to the testatrix, and that the latter pointed out what was to be modified, omitted, or partially
omitted, as the part relating to the cattle, because these animals were already dead, and the
legacies to the two servants who were no longer in service. To the question of the court, "What was
the first thing you did?" he replied:
Dominga Butalid ordered the old will to be read; each paragraph was translated into Bisaya, and
then she ordered what she had said before to be stricken out, and caused the number of mango
trees to be increased to sixty, and the lands of Masasa.
Q.

What was done after the perusal of the old will? chanrobles virtual law library

A.

It was written.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Who did the writing? chanrobles virtual law library

A.

Juan Bautista.

And in reply to cross-examination, he said:

Yes sir; she made him do the copying and when they arrived at the paragraph relating to the cattle,
she caused it to be taken out, which paragraph was marked by Juan with a pencil; ... when the will
was finished, Juan asked her if she knew how to sign; she replied in the negative, and then Juan
asked who was to sign in her stead, to which she said that I should sign.
This
witness
was
then
instructed
by
her
as
sign.chanroblesvirtualawlibrary chanrobles virtual law library

to

where

he

ought

to

Against the testimony of Juan Bautista nothing else is stated, except that he has replied by means of
subterfuges when he was examined about the conversation he had with one of the witnesses of the

oppositors. "It does not appear to be so," "I did not say those words," " I have not said such words" "I
was there all the time" - these are the replies given in relation to the statement of the witness Cirila
de Torralba, by whose statement it was attempted to prove that Juan Bautista had left a party of
friends, in the former's house, on Sunday the 17th in order to go and finish the will; this statement is
inconsistent with another made by the said lady's husband for the purpose of showing that on the
same day Mateo Rocha had been at that house and said that he was astonished at the fact that a
will had been signed the previous day, the 16th, when the deceased could no longer speak. In spite
of all this, in accordance with the above-stated declaration of the witness Esteban Dalap,
a sacristan, the following question was asked this witness:
Do you not remember either that the old woman did not reply when you asked her how many mango
trees were to be stated in the will, at 10 o'clock on Sunday morning?
A.

How could the old woman reply, if I did not go there?

Gaudencio Mendoza, the petitioner, in reply to cross- examination, said that he was instituted as an
heir, the same as "his sister Juanita, who lived with the old woman, and Januaria Mendoza, and Sr.
Clarin and his sister."
Q.
Besides this, is there no testamentary clause in favor of any other relative? chanrobles virtual
law library
A.

In that will there is none; neither in the old nor in the new will.

Relating to Guillerma Taparoc, a witness of the opposition, already mentioned:

Q.

Did Guillerma rub her stomach? chanrobles virtual law library

A.
She wanted to do so, but the old woman did not wish it; for this reason she became
angry.chanroblesvirtualawlibrary chanrobles virtual law library
Q.
Guillerma's husband is her first nephew. Is not Mendoza his surname? chanrobles virtual law
library
A.

Yes sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Were you not a friend of hers? chanrobles virtual law library

A.

No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q.

Have you had any disagreement ( disgusto) with her?chanrobles virtual law library

A.

I do not know whether she had any.chanroblesvirtualawlibrary chanrobles virtual law library

Q.
But have any misunderstandings occurred, on account of which she had animosity against
you? chanrobles virtual law library
A.

I can not say.

The will of 1897 being a public document, authorized by a notary, who testifies to its contents, and
under which the testatrix would have died, had the other will of 1905 not been executed, it can be
inferred by means of the evidence, whether the last will of the deceased was substituted or not by
some person intending to obtain benefit for himself or for anyone else by imagining what has not
taken place; and certainly nobody is benefited by the will of 1905, except Camilo Calceta, with
reference to the balance of a debt which appeared as 800 pesos in the will of 1897, and as 300
pesos in that of 1905. The petitioner Gaudencio Mendoza, who was instituted as heir in the former
will, to a considerable portion of the property besides the portion which might be assigned to him on
dividing pro rata with the other three heirs the cattle and the lands where the same pastured, has by
virtue of the second will this equal portion only, losing the other part; and if the execution of the latter
will is attributed to his influence and direction, his intention in changing benefit for prejudiced can not
be explained.chanroblesvirtualawlibrary chanrobles virtual law library
The last will, which makes a reduction in the quantity of the property only (and this property being of
only one kind, namely the cattle, and things pertaining thereto), and said will being amendatory of
conditions which could not be fulfilled eight years after its execution, on account of the death of the
cattle distributed by her in portions of 60 and 50 head to each of the four heirs, a substitution of the
will of the testatrix can not be presumed, much less when such substitution is attributed to one of the
heirs, and he being the least benefited in the last will alleged to have been substituted; it further
appears that no benefit is obtained by the substitution, but, on the contrary, a considerable
diminution of the portions allotted.chanroblesvirtualawlibrary chanrobles virtual law library
If, by the cross-examination of this same witness regarding any testamentary disposition in favor of
any other relative, it is meant to insinuate that all the desires of the testatrix were not honestly
expressed, then they were supposing what has been denied - that is, that the testatrix was in full
possession of all her faculties because she expressed a wish which was not included in the will - and
this allegation should be explicit and duly proven. On the other hand, the two wills are identical in the
designation of the heirs, the fact which determines the testate succession, while the opposition and
evidence tend only to show an intestate succession in which other relatives may be included, on
account of differences resulting from the certification of the proceedings, which would not appear to
be a legitimate and necessary consequence of a declaration of nullity of the last
will.chanroblesvirtualawlibrary chanrobles virtual law library
Upon these bases, we reverse the judgment appealed from, and hereby declare the will presented
for legalization to be valid and sufficient, without any special ruling as to costs. So ordered.

G.R. No. L-6801

March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee,

vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:

This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to
probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro.
The will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day
of April, 1908. The testator died on the 28th of September, 1909, a year and five months following
the date of the execution of the will. The will was propounded by the executrix, Juliana Bagtas,
widow of the decedent, and the opponents are a son and several grandchildren by a former
marriage, the latter being the children of a deceased daughter.
The basis of the opposition to the probation of the will is that the same was not executed according
to the formalities and requirements of the law touching wills, and further that the testator was not in
the full of enjoyment and use of his mental faculties and was without the mental capacity necessary
to execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the
time of his death suffered from a paralysis of the left side of his body; that a few years prior to his
death his hearing became impaired and that he lost the power of speech. Owing to the paralysis of
certain muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his
right hand, however, and was able to write fairly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his family.
At the time of the execution of the will there were present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently their testimony was not
available upon the trial of the case in the lower court. The other three testamentary witnesses and
the witness Florentino Ramos testified as to the manner in which the will was executed. According to
the uncontroverted testimony of these witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the
disposition of his property, and these notes were in turn delivered to Seor Marco, who transcribed
them and put them in form. The witnesses testify that the pieces of paper upon which the notes were
written are delivered to attorney by the testator; that the attorney read them to the testator asking if
they were his testamentary dispositions; that the testator assented each time with an affirmative
movement of his head; that after the will as a whole had been thus written by the attorney, it was
read in a loud voice in the presence of the testator and the witnesses; that Seor Marco gave the
document to the testator; that the latter, after looking over it, signed it in the presence of the four
subscribing witnesses; and that they in turn signed it in the presence of the testator and each other.
These are the facts of record with reference to the execution of the will and we are in perfect accord
with the judgment of the lower court that the formalities of the Code of Civil Procedure have been
fully complied with.
This brings us now to a consideration of appellants' second assignment of error, viz, the testator's
alleged mental incapacity at the time of the execution of the will. Upon this point considerable
evidence was adduced at the trial. One of the attesting witnesses testified that at the time of the
execution of the will the testator was in his right mind, and that although he was seriously ill, he
indicated by movements of his head what his wishes were. Another of the attesting witnesses stated
that he was not able to say whether decedent had the full use of his mental faculties or not, because
he had been ill for some years, and that he (the witnesses) was not a physician. The other
subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He

was unable to state whether or not the will was the wish of the testator. The only reasons he gave for
his statement were the infirmity and advanced age of the testator and the fact that he was unable to
speak. The witness stated that the testator signed the will, and he verified his own signature as a
subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he was present when the will was
executed and his testimony was cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This witness also stated that he had
frequently transacted matters of business for the decedent and had written letters and made
inventories of his property at his request, and that immediately before and after the execution of the
will he had performed offices of his character. He stated that the decedent was able to communicate
his thoughts by writing. The testimony of this witness clearly indicates the presence of mental
capacity on the part of the testator. Among other witnesses for the opponents were two physician,
Doctor Basa and Doctor Viado. Doctor Basa testified that he had attended the testator some four or
five years prior to his death and that the latter had suffered from a cerebral congestion from which
the paralysis resulted. The following question was propounded to Doctor Basa:
Q.
Referring to mental condition in which you found him the last time you attended him,
do you think he was in his right mind?
A.
I can not say exactly whether he was in his right mind, but I noted some mental
disorder, because when I spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his testimony is that the testator had
suffered a paralysis and that he had noticed some mental disorder. He does not say that the testator
was not in his right mind at the time of the execution of the will, nor does he give it at his opinion that
he was without the necessary mental capacity to make a valid will. He did not state in what way this
mental disorder had manifested itself other than that he had noticed that the testator did not reply to
him on one occasion when he visited him.
Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a
hypothetical question as to what be the mental condition of a person who was 79 years old and who
had suffered from a malady such as the testator was supposed to have had according to the
testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at
some length the symptoms and consequences of the decease from which the testator had suffered;
he read in support of his statements from a work by a German Physician, Dr. Herman Eichost. In
answer, however, to a direct question, he stated that he would be unable to certify to the mental
condition of a person who was suffering from such a disease.
We do not think that the testimony of these two physicians in any way strengthens the contention of
the appellants. Their testimony only confirms the fact that the testator had been for a number of
years prior to his death afflicted with paralysis, in consequence of which his physician and mental
strength was greatly impaired. Neither of them attempted to state what was the mental condition of
the testator at the time he executed the will in question. There can be no doubt that the testator's
infirmities were of a very serious character, and it is quite evident that his mind was not as active as
it had been in the earlier years of his life. However, we can not include from this that he wanting in
the necessary mental capacity to dispose of his property by will.

The courts have been called upon frequently to nullify wills executed under such circumstances, but
the weight of the authority is in support if the principle that it is only when those seeking to overthrow
the will have clearly established the charge of mental incapacity that the courts will intervene to set
aside a testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep.,
163), the question of testamentary capacity was discussed by this court. The numerous citations
there given from the decisions of the United States courts are especially applicable to the case at
bar and have our approval. In this jurisdiction the presumption of law is in favor of the mental
capacity of the testator and the burden is upon the contestants of the will to prove the lack of
testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the
will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.)
The rule of law relating to the presumption of mental soundness is well established, and the testator
in the case at bar never having been adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the opponents to overcome this legal
presumption by proper evidence. This we think they have failed to do. There are many cases and
authorities which we might cite to show that the courts have repeatedly held that mere weakness of
mind and body, induced by age and disease do not render a person incapable of making a will. The
law does not require that a person shall continue in the full enjoyment and use of his pristine
physical and mental powers in order to execute a valid will. If such were the legal standard, few
indeed would be the number of wills that could meet such exacting requirements. The authorities,
both medical and legal, are universal in statement that the question of mental capacity is one of
degree, and that there are many gradations from the highest degree of mental soundness to the
lowest conditions of diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right which a
person may exercise and this right should not be nullified unless mental incapacity is established in
a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in
volume 28, 70, of the American and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weaknesses,
disorders, or peculiarities and still be capable in law of executing a valid will. (See the
numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted
with approval in Campbell vs. Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be
in the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of memory possessed by the testator, as,
had he a disposing memory? Was he able to remember the property he was about to
bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his
mind and memory sufficiently sound to enable him to know and understand the business in
which he was engaged at the time when he executed his will. (See authorities there cited.)

In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The
testator died at the age of nearly 102 years. In his early years he was an intelligent and well
informed man. About seven years prior to his death he suffered a paralytic stroke and from that time
his mind and memory were mush enfeebled. He became very dull of hearing and in consequence of
the shrinking of his brain he was affected with senile cataract causing total blindness. He became
filthy and obscene in his habits, although formerly he was observant of the properties of life. The
court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total, or extend to his immediate family or property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will, and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful or recent events, especially of names, and repeated questions
in conversation; and sometimes, when aroused for sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.
In the above case the will was sustained. In the case at bar we might draw the same contrast as was
pictured by the court in the case just quoted. The striking change in the physical and mental vigor of
the testator during the last years of his life may have led some of those who knew him in his earlier
days to entertain doubts as to his mental capacity to make a will, yet we think that the statements of
the witnesses to the execution of the will and statements of the conduct of the testator at that time all
indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the
time of the execution of the will it does not appear that his conduct was irrational in any particular. He
seems to have comprehended clearly what the nature of the business was in which he was
engaged. The evidence show that the writing and execution of the will occupied a period several
hours and that the testator was present during all this time, taking an active part in all the
proceedings. Again, the will in the case at bar is perfectly reasonable and its dispositions are those
of a rational person.
For the reasons above stated, the order probating the will should be and the same is hereby
affirmed, with costs of this instance against the appellants.

G.R. No. L-25966

November 1, 1926

In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special
administrator, and LUZ LOPEZ DE BUENO, heir, appellee,
vs.
MARGARITA LOPEZ, opponent-appellant.

Marcaida, Capili and Ocampo and Camus, Delgado and Recto for appellant.
Araneta and Zaragoza for appellee.

STREET, J.:
This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The
appellant, Margarita Lopez, claims said half by the intestate succession as next of kin and nearest
heir; while the appellee, Luz Lopez de Bueno, claims the same by accredition and in the character of
universal heir the will of the decedent. The trial court decided the point of controversy in favor of Luz
Lopez de Bueno, and Margariat Lopez appealed.
The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas
Rodriguez executed his last will and testament, in the second clause of which he declared:
I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and
his daughter Luz Lopez de Bueno.
Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially
declared incapable of taking care of himself and had been placed under the care of his cousin
Vicente F. Lopez, as guardian. On January 7, 1924, or only four days after the will above-mentioned
was made, Vicente F. Lopez died; and the testator, Tomas Rodriguez, died on February 25, 1924,
thereafter. At the time the will was made Vicente F. Lopez had not presented his final accounts as
guardian, and no such accounts had been presented by him at the time of his death. Margariat
Lopez was a cousin and nearest relative of the decedent. The will referred to, and after having been
contested, has been admitted to probate by judicial determination (Torres and Lopez de Bueno vs.
Lopez, 48 Phil., 772).
Our discussion of the legal problem presented should begin with article 753 of the Civil Code which
in effect declares that, with certain exceptions in favor of near relatives, no testamentary provision
shall be valid when made by a ward in favor of his guardian before the final accounts of the latter
have been approved. This provision is of undoubted application to the situation before us; and the
provision made in the will of Tomas Rodriguez in favor of Vicente F. Lopez was not any general
incapacity on his part, but a special incapacity due to the accidental relation of guardian and ward
existing between the parties.
We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in
effect, that accretion take place in a testamentary succession, first when the two or more persons
are called to the same inheritance or the same portion thereof without special designation of shares;
and secondly, when one of the persons so called dies before the testator or renounces the
inheritance or is disqualifying to receive it. In the case before us we have a will calling Vicente F.
Lopez and his daughter, Luz Lopez de Bueno, to the same inheritance without special designation of
shares. In addition to this, one of the persons named as heir has predeceased the testator, this
person being also disqualified to receive the estate even if he had been alive at the time of the
testator's death. This article (982) is therefore also of exact application to the case in hand; and its
effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would
have received in conjunction with her father if he had been alive and qualified to take, but also the

half which pertained to him. There was no error whatever, therefore, in the order of the trial court
declaring Luz Lopez de Bueno entitled to the whole estate.
The argument in favor of the appellant supposes that there has supervened a partial intestacy with
respect to the half of the estate which was intended for Vicente F. Lopez and that this half has
descended to the appellant, Margarita Lopez, as next of kin and sole heir at law of the decedent. In
this connection attention is directed to article 764 of the Civil Code wherein it is declared, among
other things, that a will may be valid even though the person instituted as heir is disqualified to
inherit. Our attention is next invited to article 912 wherein it is declared, among other things, that
legal succession takes place if the heir dies before the testator and also when the heir instituted is
disqualified to succeed. Upon these provisions an argument is planted conducting to the conclusion
that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals
named as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s
entitled to inherit the share of said disqualified heir.
We are the opinion that this contention is untenable and that the appellee clearly has the better right.
In playing the provisions of the Code it is the duty of the court to harmonize its provisions as far as
possible, giving due effect to all; and in case of conflict between two provisions the more general is
to be considered as being limited by the more specific. As between articles 912 and 983, it is
obvious that the former is the more general of the two, dealing, as it does, with the general topic of
intestate succession while the latter is more specific, defining the particular conditions under which
accretion takes place. In case of conflict, therefore, the provisions of the former article must be
considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with respect to
intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no
right of accretion." It is true that the same express qualification is not found in subsection 4 of article
912, yet it must be so understood, in view of the rule of interpretation above referred to, by which the
more specific is held to control the general. Besides, this interpretation supplies the only possible
means of harmonizing the two provisions. In addition to this, article 986 of the Civil Code affords
independent proof that intestate succession to a vacant portion can only occur when accretion is
impossible.
The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912,
intestate succession occurs when the heir instituted is disqualified to succeed ( incapaz de suceder),
while, under the last provision in paragraph 2 of article 982, accretion occurs when one of the
persons called to inherit under the will is disqualified to receive the inheritance (incapaz de recibirla).
A distinction is then drawn between incapacity to succeed and incapacity to take, and it is contended
that the disability of Vicente F. Lopez was such as to bring the case under article 912 rather than
982. We are of the opinion that the case cannot be made to turn upon so refined an interpretation of
the language of the Code, and at any rate the disability to which Vicente F. Lopez was subject was
not a general disability to succeed but an accidental incapacity to receive the legacy, a consideration
which makes a case for accretion rather than for intestate succession.
The opinions of the commentators, so far as they have expressed themselves on the subject, tend to
the conclusion that the right of accretion with regard to portions of an inheritance left vacant by the
death or disqualification of one of the heirs or his renunciation of the inheritance is governed by
article 912, without being limited, to the extent supposed in appellant's brief, by provisions of the
Code relative to intestate succession (Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol.
VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp. 372, 373, 285-287; 16 Mucius Scaevola, 186).
Says Escriche: "It is to be understood that one of the coheirs or colegatees fails if nonexistent at the

time of the making of the will, or he renounces the inheritance or legacy, if he dies before the
testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . . (Diccionario de
Legislacion y Jurisprudencia, vol. I, p. 225.)
lawphil.net

In conclusion it may be worth observing that there has always existed both in the civil and in the
common law a certain legal intendment, amounting to a mild presumption, against partial intestacy.
In Roman law, as is well known, partial testacy systems a presumption against it, a presumption
which has its basis in the supposed intention of the testator.
The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.
G.R. No. L-18498

March 30, 1967

TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-appellee,

vs.
CRISPIN BORROMEO, ET AL., oppositors-appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.
Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo.
Crispen Baizas and Associates for heirs oppositors-appellants Tomas Borromeo and Amelia
Borromeo.
Office of the Solicitor General for intervenor oppositor-appellant Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants Crispin Borromeo, Teofilo
Borromeo, et al.
Filiberto Leonardo for petitioner-appellee.
DIZON, J.:
Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in
Paraaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said province
a petition for the probate of a one page document as the last will left by said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof (Special Proceedings No. 916-R). The
document now in the record as Exhibit "A" was dated May 17, 1946, drafted in Spanish, and
allegedly signed, and thumbmarked by said deceased, in the presence of Dr. Cornelio G.
Gandionco, Eusebio Cabiluna and Filiberto Leonardo as attesting witnesses. On June 14, 1952, the
probate court appointed Junquera as special administrator of the estate.
On November 14 of the same year, Teofilo Borromeo filed an opposition to the probate of the will
based on the following grounds: (1) that the formalities required by law had not been complied with;
(2) that the testator was mentally incapable of making a will at the time of its execution; (3) that the
will was procured by undue and improper influence, on the part of the beneficiaries and/or some
other person; (4) that the signature of the testator was procured by fraud; and (5) that the testator
acted by mistake or did not intend the instrument he signed to be his will at the time he affixed his
signature thereto.

Upon motion of the abovenamed oppositor, on June 9, 1953, the Court removed Junquera as
special administrator and appointed Dr. Patricio Beltran in his place.
On November 27, 1953, Vitaliana Borromeo, a niece of the deceased, filed her own opposition to the
probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a
forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her
opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de
Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking
substantially the same grounds mentioned heretofore.
Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on behalf of the "Cebu Arcade
Company, T. L. Borromeo y Cia.", a duly organized partnership controlled by them, filed a motion to
exclude from the inventory of the Estate previously filed by the new special administrator, thirteen
parcels of land situated in the City of Cebu with a total area of 2,148 square meters, alleging that
during his lifetime the deceased testator had sold said lots to them, as evidenced by the document
now in the record as Exhibit F-1 executed on May 17, 1945, confirming the alleged previous sale.
After due hearing, the court, in its order of July 16, 1954, denied the motion for exclusion, ruling that
movants' remedy was to file a separate accion reivindicatoria against the administrator.
On October 28, 1955, the Republic of the Philippines filed a motion for leave to intervene and join
the oppositors in contesting the probate of the will, on the ground that, should the estate be
adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and
inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention.
After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the
will and declaring itself without jurisdiction to pass upon the question of ownership over the thirteen
lots which the Cebu Arcade etc. claimed as its own. All the parties appealed the proponents of the
will from the portion of the decision denying probate, and the oppositors and the Republic of the
Philippines, from that portion thereof where the court refused to decide the question of ownership of
the thirteen lots already mentioned.
The proponents of the disputed will, mainly with the testimony of the three attesting witnesses,
Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:
In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo,
went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the
latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo,
was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo at
Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on
the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito
Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale
to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and Cabiluna. Later, Vito
Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him,
dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal
language. The document was then read by Vito Borromeo, who later signed and thumbmarked it
(Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting
witnesses, who, in turn, signed the will and its copies in the presence of Vito Borromeo and of each
other.

Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic priest who was the confessor
of Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946
to 1947, and Vicenta Maacap, a mid-wife who lived in the testator's house and had served him from
May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to
the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move
around freely with the aid of a cane; that he was still mentally alert and was a man of strong will; that
his right hand was unimpaired and he could write with it unaided; that as a matter of fact
according to Vicenta Maacap he still wrote personal letters to Tomas Borromeo, could eat by
himself and even played the piano.
On the other hand, the oppositors presented several witnesses who testified that the signatures
purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries;
that they were too good and too perfect signatures and, therefore, quite impossible for the deceased
an ailing man already 82 years old on May 17, 1945 to write; that he was found "positive for
bacillus leprosy" by Dr. Antonio Garcia as early as 1926 or 1927, having been treated for it
consistently by injections of chaulmoogra oil administered by Dr. Max Borromeo and Dr. Cornelio
Gandionco; that Vito Borromeo's usual signatures during his better days had always been
characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared
and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was
no conceivable reason why they were left out in the will, if any such will had really been made by him
knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness,
Filiberto Leonardo, and was the fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the
instituted heirs; that the third testamentary witness, Eusebio Cabiluna is the real father of Fortunato
Borromeo, another instituted heir, who admittedly grew up and was reared by Vito Borromeo and his
wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted
heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17, 1945, the
deceased's leprosy was so far advanced that the fingers of his right hand were already hardened
and atrophied, this making it difficult, if not impossible, for him to write; and that on the same date,
his sense of hearing and his eyesight had been considerably impaired, his eyes being always watery
due to the progress of his leprosy.
The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G.
Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the
deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the
questioned signatures were forgeries. The proponents, however, presented their own handwriting
expert, Martin Ramos, who testified to the contrary.
The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied the
petition for probate, because, in its opinion, they appeared not to be "wholly disinterested persons"
and because of the serious discrepancies in their testimonies with respect to the number of copies
made of the disputed document. The court also found that the physical condition of the deceased at
the time of the execution of the questioned document was such that it was highly improbable, if not
impossible, for him to have affixed his signatures on the documents Exhibits A, E and K in the
spontaneous and excellent manner they appear to have been written. Thus, the court was also led to
believe the testimony of the handwriting experts for oppositors, adverse to the genuineness of the
signatures of Vito Borromeo on the questioned document more than that of the handwriting expert
presented by the proponents of the will.

It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not
the evidence of record is sufficient to prove the due execution of the will in question.
1wph1.t

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are
regarded as the best witnesses in connection with its due execution. It is similarly true, however, that
to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the case
of any other witness, their testimony may be overcome by any competent evidence direct or
circumstantial (Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).
It is also an appellate practice of long standing in this jurisdiction to accord great weight to the
findings of fact made by the trial court and not to disturb them unless said court had failed to
consider material facts and circumstances or had given undue weight to, or misconstrued the
testimony of particular witnesses, the reason for this being that the trial judge had full opportunity to
hear and observe the conduct and demeanor of the witnesses while testifying and was consequently
in a better position than the reviewing court to determine the question of their credibility. While this is
not applicable to the present case because His Honor, the judge who penned the appealed decision
was not the same judge before whom the evidence of the parties was presented, it must be stated
that, judging from the carefully written decision under review, it was only after a thorough study of the
record that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be
wholly disinterested persons.
On the matter of the number of copies made of the questioned will allegedly signed by the testator
and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and
confused; that a certain stage of his examination, he said that only two copies of the will were
prepared the original and one carbon copy while at another stage he affirmed that he did not
know whether or not there was a duplicate and that all he could say was that he had affixed his
signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he really
signed six (6) times twice on the original and twice on each of the two copies. Adding confusion to
the situation is the answer he gave when he was asked if Vito Borromeo also signed the carbon
copy, to which his answer was "I did not see" (Idem., p. 50).
On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that
there were only the original and one carbon copy of the will and that the testator and all the
subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and
218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the
vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of
the questioned will themselves presented three copies of said will; the original, a carbon duplicate
copy and a carbon triplicate copy, now in the record as Exhibits A, E and K, respectively.
While it is true that the testimony of these subscribing witnesses was given around eight years after
the alleged execution of the questioned will, still we believe that the transaction in which they claim
to have taken an important part is of such character and importance that it can not be a very easy
matter for anyone of them to have a hazy recollection of the number of copies signed by the testator
and by them. Stranger still would it be for them to say something in open contradiction with the
reality on the matter. If, as may be clearly deduced from their testimony Cabiluna and Leonardo's
there was only the original and one copy signed by the testator and the subscribing witnesses,
why is it that three original and two copies were really in existence and were produced in court
during the trial?

In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by
two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles
Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will,
evidently to show that he is not a completely disinterested witness. The evidence to this effect
appears to have remained unimpeached, although the proponents of the will could have done it by
calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation.
Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing
witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged
execution of the will. This circumstance apparently trivial can not be taken lightly because in
view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be
unreasonable to entertain the suspicion that both subscribing witnesses were not wholly
disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was
the notary public before whom the document Exhibit 4-A which purports to convey to a
partnership controlled by the heirs instituted in the questioned will thirteen parcels of land situated in
the commercial center of Cebu City was supposedly acknowledged by the testator on the same
date May 17, 1945.
In the light of the foregoing, We can not see our way clear to holding that the trial court erred in
refusing to give full credit to the testimony of the three subscribing witnesses.
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
exaggerate 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 other. This can not be said of the
condition and physical appearance of the questioned document itself. Both, albeit silently, will reveal
the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this reason,
independently of the conflicting opinions expressed by the handwriting experts called to the witness
stand by the parties, we have carefully examined and considered the physical appearance and
condition of the original and two copies of the questioned will found in the record particularly the
signatures attributed to the testator and We have come to the conclusion that the latter could not
have been written by him.
Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a total
of six alleged signatures of the testator. They are all well written along a practically straight line,
without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in the
respects just adverted to, they appear better written than the unquestioned signatures, of attesting
witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged execution of
the will (May 17, 1945) the testator was considerably older and in a much poorer physical condition
than they. According to the evidence, the testator was then a sick man, eighty-two years old, with the
entire left half of his body paralyzed since six years before, while the oldest attesting witness
(Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were only forty-four and
forty-five years old respectively, and were all in good health. Despite the obviously very poor
physical condition of the testator, Leonardo claims that he signed the alleged will unaided, writing his
name thereon slowly but continuously or without interruption, and that, on the same occasion, he
signed his name several times not only on the original of the will and its copies but also on the
original and several copies of the alleged confirmatory sale Exhibit F-1 and on his residence

certificate. Considering all the attendant circumstances, we agree with the lower court that Vito
Borromeo could not have written the questioned signatures.
In view of what has been said heretofore, We find it unnecessary to examine and consider in detail
the conflicting testimony of the handwriting experts presented by the parties: Martin Ramos by the
proponents of the will, to sustain the genuineness of the questioned signatures, and Felipe Logan
and Jose G. Villanueva, by the oppositors, to prove that said signatures are forgeries. We shall limit
ourselves in this connection to quoting with approval the following portion of the appealed decision:
What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his
comparative examination of the questioned and standard signatures of Vito Borromeo, is his
apparent assumption that all the signatures were made by Vito Borromeo under equality or
similarity of circumstances, that is, that in all instances Vito Borromeo had normal use of both
of his hands, the right and the left. He failed to take into account that when Vito Borromeo
allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the left portion
of his body, including the left hand, was already paralyzed, and Vito Borromeo was
represented to have written his name alone by himself and unaided. Maybe, if he was
previously apprised of those circumstances, he would hesitate to make the conclusion that
those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if
not better than, the signatures of three much younger attesting witnesses, were positively in
the handwriting of the 82-year old, ailing, and paralytic Vito Borromeo. The Court
consequently, finds itself not disposed to adopt his conclusions, but on the contrary is
inclined toward the views of the other two experts witnesses, Felipe Logan and Jose G.
Villanueva.
As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the
testator. An examination of the thumbmarks, however, readily shows that, as the lower court found,
the same are "glaringly far from being distinct and clear"; that "they are not a possible means of
identification" nor can "they possibly be identified to be those of Vito Borromeo, or for that matter, of
any other person whatsoever". It is, therefore, obvious, that they are of little use in the resolution of
the issue before Us.
We shall now consider the appeal, taken by the oppositors and the Republic of the Philippines from
that portion of the decision where the lower court declined to decide with finality the question of who
owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and whether or
not they should be included in or excluded from the inventory of properties of the Estate of the
deceased Vito Borromeo.
It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through counsel, filed
a motion for the exclusion from the inventory of the Estate of the thirteen lots therein mentioned, with
a total area of 2,348 square meters, claiming that the same had been sold by the deceased Vito
Borromeo during his lifetime to the Cebu Arcade, T. L. Borromeo y Cia. This motion for exclusion
was denied by the lower court in its order of July 16, 1954, and the ruling was reiterated in the
appealed decision "for the same reasons and considerations" upon which it rejected the probate of
the will. The ruling on the matter, however, was expressly made provisional in nature.
We believe, and so hold, that the resolution of the lower court on this matter is correct because said
court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the
question of ownership involved. That such matter must be litigated in a separate action has been the

established jurisprudence in this jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari vs.
Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29, 1957; Cordova vs.
Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party merely
prays for the inclusion or exclusion from the inventory of any particular property, in which case the
probate court may pass upon provisionally, the question of inclusion or exclusion, but without
prejudice to its final determination in an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353;
Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).
In view of all the foregoing, the decision appealed from is affirmed, with costs.

G.R. No. L-19142

March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased.

FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.
Marcaida, Capili and Ocampo for appellant.
Epimaco Molina for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is
no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it
may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the
deceased.
In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress
and under undue influence, and that at the time of the execution of the will he was not of sound and
disposing mind.
We do not think the opponent has succeeded in proving any of his allegations. There is no evidence
whatever showing that the testator acted under duress or undue influence and the only question of
fact which we need consider is whether the testator was of sound and disposing mind when the
document in question was executed.
Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He died about eight or nine o'clock in the
evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the
same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously
that coma implies complete unconsciousness, and that the testator, therefore, could not at that time
have been in possession of his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be aroused and have lucid intervals.

Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal witness, who
visited the deceased in the evening of December 25th, says he then seemed to be in a state
of coma and that in the forenoon of December 26th, when the doctor again visited him, he was in
"the same state of coma." Maximina Ong, the wife of the opponent, the only other witness for the
opposition, states that on December 26th the deceased could not talk and did not recognize anyone.
But all the witnesses presented by the petitioner, five in number, testify that the deceased was
conscious, could hear and understand what was said to him and was able to indicate his desires.
Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answer to questions.
That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be no doubt
that he was of sound mind and capable of making his will. And we see no reason to discredit any of
these witnesses; the discrepancies found between their respective versions of what took place at the
execution of the document are comparatively unimportant and so far from weakening their testimony
rather lend strength to it by indicating the absence of any conspiracy among them.
As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The
former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere
professional speculation cannot prevail over the positive statements of five apparently credible
witnesses whose testimony does not in itself seem unreasonable.
There is no direct evidence in the record showing that the publication of the time and place of the
hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in admitting the will to probate without
proof of such publication. This question not having been raised in the court below will not be
considered here.
Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also
provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed
by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr.
N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded.
There is no merit in this contention. When, as in this case, the testimony is taken by the
stenographer of the court and certified to by him, the provision quoted can only be regarded as
directory and a failure to observe the provision will not render the testimony inadmissible. (Reese vs.
Nolan, 99 Ala., 203.)
The order appealed from is affirmed, with the costs against the appellant. So ordered.

G.R. No. 157954

March 24, 2006

PAZ GALVEZ, CARLOS TAM, and TYCOON PROPERTIES, INC., Petitioners,

vs.
HON. COURT OF APPEALS and PORFIRIO GALVEZ, Respondents.

DECISION
CHICO-NAZARIO, J.:
The factual antecedents of this case reveal that Timotea F. Galvez died intestate on 28 April
1965.1 She left behind her children Ulpiano and Paz Galvez. Ulpiano, who died on 24 July
1959,2 predeceased Timotea and was survived by his son, Porfirio Galvez. Timotea left a parcel of
land situated at Pagdaraoan, San Fernando, La Union, covered by Tax Declaration No. 39645 3 and
more particularly described as follows:
A parcel of unirrigated riceland situated at Brgy. Pagdaraoan, San Fernando, La Union under Tax
Declaration No. 39645, series of 1957, with an area of 4,304.5 square meters, more or less bounded
on the North by Valentin and Isidoro Sobrepea; on the East by Nicolas Ducusin; on the South by
Victor Ducusin; and on the West by the National Highway.4
Considering that all the other compulsory heirs of Timotea already received their respective
shares,5 the property passed by succession, both to Timoteas daughter, Paz Galvez, and to the
formers grandson, Porfirio, the latter succeeding by right of representation as the son of Ulpiano.
Porfirio Galvez was surprised to discover that on 4 May 1970, 6 Paz Galvez executed an affidavit of
adjudication stating that she is the true and lawful owner of the said property. Tax Declarations No.
157497 and No. 123428were then issued in the name of Paz Galvez. On 22 June 1992, without the
knowledge and consent of Porfirio Galvez, Paz Galvez sold the property to Carlos Tam for a
consideration of Ten Thousand Pesos (P10,000.00) by way of a Deed of Absolute Sale. 9 Carlos Tam
thereafter filed an application for registration of said parcel of land under Land Registration Case No.
2278 before the Regional Trial Court (RTC) of San Fernando, La Union. On 21 January 1994,
Original Certificate of Title No. 0-2602 of the Registry of Deeds of San Fernando, La Union, was
issued in the name of Carlos Tam.10 Subsequently, on 27 September 1994, Carlos Tam sold the
property to Tycoon Properties, Inc. through a Deed of Absolute Sale executed by the former in favor
of the latter.11 As a result, the title of Carlos Tam over the property was cancelled and a new one,
Transfer Certificate of Title (TCT) No. T-4039012 was issued in favor of Tycoon Properties, Inc.
On 12 May 1994, Porfirio Galvez filed Civil Case No. 4895 before the RTC, Branch 26, of San
Fernando, La Union, for Legal Redemption with Damages and Cancellation of Documents 13 against
Paz Galvez and Carlos Tam. The Complaint was later amended to implead as additional defendant,
Tycoon Properties, Inc.14 When Tycoon Properties, Inc. filed its Answer, it also filed a cross-claim
against Carlos Tam. In a decision15 dated 15 December 1999, the trial court held:
WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:
1. declaring null and void the Affidavit of Adjudication executed by defendant PAZ GALVEZ
dated May 4, 1970;
2. declaring null and void the Deed of Absolute Sale over the property originally covered by
Tax Declaration No. 39645 executed by PAZ GALVEZ in favor of CARLOS TAM;
3. the Original Certificate of Title No. 0-2602, in the name of CARLOS TAM be considered
cancelled;
4. The Deed of Sale between CARLOS TAM and TYCOON PROPERTIES, Inc. is hereby
ordered cancelled with Transfer Certificate of Title No. T-40390, being null and void;

5. That CARLOS TAM shall receive from the Clerk of Court, San Fernando City, La Union the
amount of Ten Thousand (P10,000.00) pesos, as redemption of the property pursuant to law;
6. That the property covered by Transfer Certificate of Title No. T-40390, be reconveyed
(whole property) to PORFIRIO GALVEZ, he having redeemed one-half () of the property
from CARLOS TAM and other half of the property belongs to him as co-heir of TIMOTEA
FLORES GALVEZ.
7. Defendant PAZ GALVEZ and CARLOS TAM shall be liable solidarily for the actual
damages of the plaintiff in the amount of Ten Thousand (P10,000.00) pesos as well as moral
damages in the amount of Fifty Thousand (P50,000.00) Pesos, together with attorney's fees
in the amount of Ten Thousand (P10,000.00) Pesos acceptance fee and Five Hundred
(P500.00) per appearance fee.16
Petitioners Paz Galvez, Carlos Tam and Tycoon Properties, Inc. appealed the decision to the Court
of Appeals.17In a decision of the Court of Appeals dated 28 August 2002, 18 the appellate court
resolved to affirm the decision of the trial court. Petitioners filed a Motion for Reconsideration which
was denied in a resolution dated 14 April 2003.19
Not contented with the decision of the Court of Appeals, petitioners are now before this Court via
Petition for Review on Certiorari under Rule 45 of the Rules of Court.
Petitioners Carlos Tam and Tycoon Properties, Inc. separately filed their Memorandum 20 but raised
the same issues to wit:
I
THE HONORABLE COURT OF APPEALS ERRED WHEN IT REFUSED TO HOLD THAT
RESPONDENT'S CLAIM OVER THE SUBJECT PROPERTY, WHICH IS BASED ON AN IMPLIED
TRUST, HAS ALREADY PRESCRIBED BECAUSE THE ACTION WAS FILED 24 YEARS AFER
PETITIONER REPUDIATED THE SAID TRUST.
II
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAILED TO RECOGNIZE THAT
RESPONDENT'S CLAIM IS ALREADY BARRED BY LACHES BECAUSE HE FAILED TO ASSERT
HIS ALLEGED RIGHT FOR ALMOST TWENTY FOUR (24) YEARS.
III
THE HONORABLE COURT ERRED IN FAILING TO RECOGNIZE THAT PETITIONERS [CARLOS
TAM AND] TYCOON PROPERTIES ARE BUYERS IN GOOD FAITH AND FOR VALUE AND HAS
THE RIGHT TO RELY ON THE FACE OF THE TITLE.21
In assailing the decisions of the trial and appellate courts, petitioners cite Article 1451 22 of the Civil
Code and claim that an implied or constructive trust which prescribes in ten years, was established
between Paz Galvez and Porfirio Galvez. It is petitioners unflinching stand that the implied trust was
repudiated when Paz Galvez executed an Affidavit of Self-Adjudication on 4 May 1970, registered
the same before the Register of Deeds of La Union on 4 June 1970 and secured a new tax
declaration in her name. From 4 May 1970 to the time the complaint was filed on 12 May 1994, 24
years have passed, hence, the action is clearly barred both by prescription and laches.

We find the petition bereft of merit.

Ostensibly, this case is governed by the rules on co-ownership 23 since both Paz Galvez and Porfirio
Galvez are obviously co-owners of the disputed property having inherited the same from a common
ancestor. Article 494 of the Civil Code provides that "[a] prescription shall not run in favor of a coowner or co-heir against his co-owners or co-heirs as long as he expressly or impliedly recognizes
the co-ownership."
It is a fundamental principle that a co-owner cannot acquire by prescription the share of the other coowners, absent any clear repudiation of the co-ownership. 24 In Santos v. Santos,25 citing the earlier
case of Adille v. Court of Appeals,26 this Court found occasion to rule that:
Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by
repudiation (of the co-ownership). The act of repudiation, in turn, is subject to certain conditions: (1)
a co-owner repudiates the co-ownership; (2) such an act of repudiation is clearly made known to the
other co-owners; (3) the evidence thereon is clear and conclusive; and (4) he has been in
possession through open, continuous, exclusive, and notorious possession of the property for the
period required by law.
For title to prescribe in favor of a co-owner there must be a clear showing that he has repudiated the
claims of the other co-owners and the latter has been categorically advised of the exclusive claim he
is making to the property in question. The rule requires a clear repudiation of the co-ownership duly
communicated to the other co-owners.27 It is only when such unequivocal notice has been given that
the period of prescription will begin to run against the other co-owners and ultimately divest them of
their own title if they do not seasonably defend it.28
To sustain a plea of prescription, it must always clearly appear that one who was originally a joint
owner has repudiated the claims of his co-owners, and that his co-owners were apprised or should
have been apprised of his claim of adverse and exclusive ownership before the alleged prescriptive
period began to run.29
In Salvador v. Court of Appeals,30 it was held that the possession of a co-owner is like that of a
trustee and shall not be regarded as adverse to the other co-owner but in fact beneficial to all of
them.
The case of Huang v. Court of Appeals31 is instructive on the creation of trust relationships.
Trust is a fiduciary relationship with respect to property which involves the existence of equitable
duties imposed upon the holder of the title to the property to deal with it for the benefit of another. A
person who establishes a trust is called the trustor; one in whom confidence is reposed as regards
property for the benefit of another person is known as the trustee; and the person for whose benefit
the trust has been created is referred to as the beneficiary or cestui que trust. Trust is either express
or implied. Express trust is created by the intention of the trustor or of the parties. Implied trust
comes into being by operation of law. The latter kind is either constructive or resulting trust. A
constructive trust is imposed where a person holding title to property is subject to an equitable duty
to convey it to another on the ground that he would be unjustly enriched if he were permitted to
retain it. The duty to convey the property arises because it was acquired through fraud, duress,
undue influence or mistake, or through breach of a fiduciary duty, or through the wrongful disposition
of anothers property. On the other hand, a resulting trust arises where a person makes or causes to
be made a disposition of property under circumstances which raise an inference that he does not
intend that the person taking or holding the property should have the beneficial interest in the
property. It is founded on the presumed intention of the parties, and as a general rule, it arises

where, and only where such may be reasonably presumed to be the intention of the parties, as
determined from the facts and circumstances existing at the time of the transaction out of which it is
sought to be established.
Acts which may be considered adverse to strangers may not be considered adverse insofar as coowners are concerned. Thus, Salvador v. Court of Appeals reiterated what acts constitute proof of
exclusive ownership amounting to repudiation, emphasizing that the act must be borne out of clear
and convincing evidence of acts of possession which unequivocably amounts to an ouster or
deprivation of the right of the other co-owner. The case of Pangan v. Court of Appeals 32 enumerated
the following as constituting acts of repudiation:
Filing by a trustee of an action in court against the trustor to quiet title to property, or for recovery of
ownership thereof, held in possession by the former, may constitute an act of repudiation of the trust
reposed on him by the latter.
The issuance of the certificate of title would constitute an open and clear repudiation of any trust,
and the lapse of more than 20 years, open and adverse possession as owner would certainly suffice
to vest title by prescription.
An action for the reconveyance of land based on implied or constructive trust prescribes within 10
years. And it is from the date of the issuance of such title that the effective assertion of adverse title
for purposes of the statute of limitation is counted.
The prescriptive period may only be counted from the time petitioners repudiated the trust relation in
1955 upon the filing of the complaint for recovery of possession against private respondents so that
the counterclaim of the private respondents contained in their amended answer wherein they
asserted absolute ownership of the disputed realty by reason of the continuous and adverse
possession of the same is well within the 10-year prescriptive period.
There is clear repudiation of a trust when one who is an apparent administrator of property causes
the cancellation of the title thereto in the name of the apparent beneficiaries and gets a new
certificate of title in his own name.
It is only when the defendants, alleged co-owners of the property in question, executed a deed of
partition and on the strength thereof obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein they appear as the new owners of a definite
area each, thereby in effect denying or repudiating the ownership of one of the plaintiffs over his
alleged share in the entire lot, that the statute of limitations started to run for the purposes of the
action instituted by the latter seeking a declaration of the existence of the co-ownership and of their
rights thereunder.
In this case, we find that Paz Galvez effected no clear and evident repudiation of the co-ownership.
The execution of the affidavit of self-adjudication does not constitute such sufficient act of
repudiation as contemplated under the law as to effectively exclude Porfirio Galvez from the
property. This Court has repeatedly expressed its disapproval over the obvious bad faith of a co-heir
feigning sole ownership of the property to the exclusion of the other heirs essentially stating that one
who acts in bad faith should not be permitted to profit from it to the detriment of others. In the cases
of Adille33 and Pangan34 where, as in this case, a co-heir was excluded from his legal share by the
other co-heir who represented himself as the only heir, this Court held that the act of exclusion does
not constitute repudiation.

On the issue of prescription, while admittedly prescription operates as a bar to recovery of property,
the ten-year period commenced to run from date of registration. In this case, Carlos Tam obtained
his title to the property on 21 January 1994. Since the complaint of Porfirio Galvez was filed on 12
May 1994, the same was well within the ten-year period to file the action.
On the matter of laches, it is hornbook doctrine that laches is a creation of equity and its application
is controlled by equitable considerations. Laches cannot be used to defeat justice or perpetrate fraud
and injustice.35 Neither should its application be used to prevent the rightful owners of a property
from recovering what has been fraudulently registered in the name of another.36 The equitable
remedy of laches is, therefore, unavailing in this case.
Finally, petitioners claim that if the sale would be nullified, the nullification should extend only to the
one-half share of Porfirio Galvez 37 but not to the share of Paz Galvez, who, by her overt act of selling
the property, manifested her intention to dispose of her part.
Notably, Porfirio Galvezs complaint was captioned "legal redemption with damages, cancellation of
documents and reconveyance of share." 38 In his prayer, he sought for the reconveyance of his onehalf share in the property and at the same time be subrogated to the other half pertaining to Paz
Galvez and sold to Carlos Tam after reimbursement of the amount which the latter paid for the
property.
The pertinent provisions of the Civil Code on legal redemption are as follows:
ART. 1619. Legal redemption is the right to be subrogated, upon the same terms and conditions
stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment,
or by any other transaction whereby ownership is transmitted by onerous title.
ART. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the
other co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do so in
proportion to the share they may respectively have in the thing owned in common.
In the case of Hermoso v. Court of Appeals, 39 this Court, in interpreting the provision of the law on
legal redemption, held:
The purpose of Article 1067 (of the old Civil Code, now Article 1088 of the present Civil Code) is to
keep strangers to the family out of a joint ownership, if, as is often the case, the presence of
outsiders be undesirable and the other heir or heirs be willing and in a position to repurchase the
share sold (De Jesus vs. Manlapus, 81 Phil. 144). While there should be no question that an heir
may dispose his right before partition (Rivero vs. Serrano [CA] 46 O.G. 642; Wenceslao vs. Calimon,
46 Phil. 906; Hernaez vs. Hernaez, 32 Phil. 214), a co-heir would have had to pay only the price for
which the vendee acquired it (Hernaez vs. Hernaez, Ibid.).
It is a one-way street. It is always in favor of the redemptioner since he can compel the vendee to
sell to him but he cannot be compelled by the vendee to buy the alienated property.
In another case, 40 this Court reiterated that:

Legal redemption is in the nature of a privilege created by law partly for reasons of public policy and
partly for the benefit and convenience of the redemptioner, to afford him a way out of what might be
a disagreeable or [an] inconvenient association into which he has been thrust. (10 Manresa, 4th Ed.,
317.) It is intended to minimize co-ownership. The law grants a co-owner the exercise of the said
right of redemption when the shares of the other owners are sold to a "third person."
The rule on redemption is liberally construed in favor of the original owner of the property and the
policy of the law is to aid rather than defeat him in the exercise of his right of redemption. 41
Thus, petitioners cannot be accommodated in this respect and we agree with the trial court when it
held:
The provision of Art. 1088 of the Civil Code of the Philippines is very clear on the matter.
Art. 1088, provides: "Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all the co-heirs may be subrogated to the rights of the purchaser by reimbursing him
for the price of the sale, provided they do so within the period of one (1) month from the time they
were notified in writing of the sale by the vendor."
There was no written notice sent to Porfirio Galvez by Paz Galvez when she sold her share over the
land to Carlos Tam. Porfirio Galvez only discovered on May 12, 1994 that the land was sold to
Carlos Tam. Art. 1620, Civil Code of the Philippines, provides:
Art. 1620. "A co-owner of a thing may exercise the right of redemption in case the share of all the
other co-owners or any of them are sold to a third person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a reasonable one."
No written notice of the sale was given by Paz Galvez (vendor) to Porfirio Galvez, the co-owner as
required under Art. 1623 of the Civil Code. The written notice is mandatory. Hence, the right to
redeem commenced when plaintiff sought to exercise it by instituting the complaint in the instant
case on June 12, 1994. The complaint of legal redemption may be filed even several years after the
consummation of sale (Zosima Verdad vs. Court of Appeals, et al.; G.R. No. 10972, April 29, 1996). 42
As to petitioners Carlos Tam and Tycoon Properties, Inc.s claim that they are buyers in good faith,
same fails to persuade.
A purchaser in good faith and for value is one who buys the property without notice that some other
person has a right to or interest in such property and pays its fair price before he has notice of the
adverse claims and interest of another person in the same property. So it is that the "honesty of
intention" which constitutes good faith implies a freedom from knowledge of circumstances which
ought to put a person on inquiry.43
Suffice it to state that both the trial and appellate courts found otherwise as "Tam did not exert efforts
to determine the previous ownership of the property in question" 44 and relied only on the tax
declarations in the name of Paz Galvez. 45 It must be noted that Carlos Tam received a copy of the
summons and the complaint on 22 September 1994. This notwithstanding, he sold the property to
Tycoon Properties, Inc. on 27 September 1994. Significantly, Carlos Tam is also an owner of Tycoon
Properties, Inc. to the extent of 45%. 46 A notice of lis pendens dated 8 July 1997 filed with the
Registry of Deeds of the Province of La Union was inscribed on TCT No. T- 40390. 47 Despite the
inscription, Tycoon Properties, Inc. mortgaged the land to Far East Bank and Trust Company for the
sum of P11,172,600.48 All these attendant circumstances negate petitioners claim of good faith.

Wherefore, premises considered, the decision of the Court of Appeals dated 28 August 2002 and its
Resolution dated 14 April 2003 are Affirmed. Costs against petitioners.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

ROMEO J. CALLEJO, SR.

Associate Justice
C E R TI F I C ATI O N
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
Petitioners proceed to describe when the period is reckoned and state that this occurs (1) when the
trustee has performed unequivocal acts of repudiation amounting to an ouster of the cestui que trust;
(2) such positive acts of repudiation have been made known to the cestui que trust, and (3) the
evidence thereon is clear and positive.
Presidential Decree No. 1529, known as the Property Registration Decree, Section 113 provides:
SEC. 113. Recording of instrument relating to unregistered lands. - No deed, conveyance, mortgage,
lease, or other voluntary instrument affecting land not registered under the Torrens system shall be
valid, except as between the parties thereto, unless such instrument shall have been recorded in the
manner herein prescribed in the office of the Register of Deeds for the province or city where the
land lies.
(a) the Register of Deeds for each province or city shall keep a Primary Entry book and a
Registration book. The Primary Entry Book shall contain, among other particulars, the entry
number, the names of the parties, the nature of the document, the date, hour and minute it
was presented and received. The recording of the deed and other instruments relating to
unregistered lands shall be effected by way of annotation onthe space provided therefor in
the Registration Book, after the same shall have been entered in the Primary Entry Book.
(b) If, on the face of the instrument, it appears that it is sufficient in law, the Register of
Deeds shall forthwith record the instrument in the manner provided herein. In case the

Register of Deeds refuses its admission to record, said official shall advise hte party in
interest in writing of the ground or grounds for his refusal, and the latter may appeal the
matter to the Commissioner of Land Registration in accordance with the provisions of
Section 117 of this Decree. It shall be understood that any recording made under this section
shall be without prejudice to a third party with a better right.
(c) After recording on the Record Book, the Register of Deeds shall endorse, among other
things, upon the original of the recorded instruments, the file number and the date as well as
the hour and minute when the document was received for recording as shown in the primary
entry book, returning to the registrant or person in interest the duplicate of the instrument,
with appropriate annotation, certifying that he has recorded the instrument after reserving
one copy thereof to be furnished the provincial or city assessor as required by existing law.
(d) Tax sale, attachment and levy, notice of lis pendens, adverse claim and other instruments
in the nature of involuntary dealings with respect to unregistered lands, if made in the form
sufficient in law, shall likewise be admissible to record under this section.
(e) For the services to be rendered by the Register of Deeds under this section, he shall
collect the same amount of fees prescribed for similar services for the registration of deeds
or instruments concerning registered lands.49
In the case of Alzona V. Capunitan 50 cited by the petitioner Tycoon Properties, while admittedly, the
Court made a pronouncement therein that an action for reconveyance based on implied or
constructive trust prescribes in ten (10) years, the court found that there was in the said case an
express repudiation of the trust by the defendants-appellees who had consistently repudiated the
trust. The case therein dealt with a property registered under the Torrens system. Similarly, Medina
v. Court of Appeals,51 again cited by petitioner Tycoon simply made a pronouncement regarding the
prescriptibility of action based on implied or constructive trust but does not involve an unregistered
land such as in the case at bar.
In the same manner, the citation by petitioner Tycoon of the case of Gonzales v. Intermediate
Appellate Court,52and the case of Vda. De Esconde v. Court of Appeals,53 we find inapplicable as
well, as the property involved therein is registered under the Torrens System.
C.A. No. 8075

March 25, 1946

TRINIDAD NEYRA, plaintiff-appellant,

vs.
ENCARNACION NEYRA, defendant-appellee.
Alejandro M. Panis for appellant.
Lucio Javillonar for appellee.
DE JOYA, J.:
On October 25, 1939, Trinidad Neyra filed a complaint against her sister, Encarnacion Neyra, in the
Court of First Instance of the City of Manila, for the recovery of one-half () of the property
mentioned and described therein, which had been left by their deceased father, Severo Neyra, and
which had been previously divided equally between the two extrajudicially, demanding at the same
time one-half () of the rents collected on the said property by the defendant Encarnacion Neyra.
The defendant filed an answer admitting that the property mentioned and described therein was

community property, and at the same time set up counterclaims amounting to over P1,000, for
money spent, during the last illness of their father, and for money loaned to the plaintiff.
After the trial of the case, the court found that the plaintiff was really entitled to one-half () of the
said property, adjudicating the same to her, but at the same time ordered said plaintiff to pay to the
defendant the sum of P727.77, plus interests, by virtue of said counterclaims.
Plaintiff Trinidad Neyra appealed from the said decision, to the Court of Appeals for Manila, alleging
several errors, attacking the execution and validity of said agreement; and on November 10, 1942,
said appeal was dismissed, pursuant to the to an agreement or compromise entered into by the
parties, as shown by the corresponding document, dated November 3, 1942, which was filed in the
case the following day, November 4, 1942.
In the meanwhile, Encarnacion Neyra, who had been sickly for about two years, unexpectedly died,
on November 4, 1942 at the age of 48, allegedly from heart attack, as a consequence of Addison's
disease from which, it was claimed, she had been suffering for sometime.
In view of the decision of the Court of Appeals, dated November 10, 1942, dismissing the appeal, by
virtue of said agreement or compromise, Atty. Lucio Javillonar, claiming to represent Encarnacion
Neyra, who had died since November 4, 1942, and other relatives of hers, filed a petition, dated
November 23, 1942, asking for the reconsideration of said decision of the Court of Appeals,
dismissing the appeal, claiming that the alleged compromise or agreement, dated November 3,
1942, could not have been understood by Encarnacion Neyra, as she was already then at the
threshold of death, and that as a matter of fact she died the following day; and that if it had been
signed at all by said Encarnacion Neyra, her thumbmark appearing on said document must have
been affixed thereto by Trinidad Neyra's attorney, against Encarnacion's will; and that the court had
no more jurisdiction over the case, when the alleged agreement was filed on November 4, 1942, at
the instance of Trinidad Neyra, as Encarnacion was already dead at the time.
The principal question to be decided, in connection with said petition for reconsideration, is whether
or not said compromise or agreement had been legally executed and signed by Encarnacion Neyra,
on November 3, 1942. Trinidad Neyra maintains the affirmative.
The voluminous evidence, testimonial and documentary, adduced by the parties, in this case, has
fully established the following facts:
That Severo Nayra died intestate in the City of Manila, on May 6, 1938, leaving certain properties
and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and other
children by his second marriage; That after the death of Severo Neyra, the two sisters, Encarnacion
Neyra and Trinidad Neyra, had serious misunderstandings, in connection with the properties left by
their deceased father, and so serious were their dissensions that, after March 31, 1939, they had two
litigations in the Court of First Instance of Manila, concerning said properties. In the first case, filed in
March 31, 1939, Trinidad Neyra and others demanded by Encarnacion Neyra and others the
annulment of the sale of the property located at No. 366 Raon Street, Manila which was finally
decided in favor of the defendants, in the court of first instance, and in the Court of Appeals, on
December 21, 1943 (G.R. No. 8162); and the second is the instance case.
That Encarnacion Neyra, who had remained single, and who had no longer any ascendants,
executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the

"Congregacion de Religiosas de la Virgen Maria" and her other relatives, named Teodora Neyra,
Pilar de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will, in
favor of her only sister of the whole blood, Trinidad Neyra, who had become her bitter enemy; that
when the said will was brought to the attention of the authorities of said Congregation, after due
deliberation and consideration, said religious organization declined the bounty offered by
Encarnacion Neyra, and said decision of the Congregation was duly communicated to her; that in
order to overcome the difficulties encountered by said religious organization in not accepting the
generosity of Encarnacion Neyra, the latter decided to make a new will, and for that purpose, about
one week before her death, sent for Atty. Ricardo Sikat, and gave him instructions for the preparation
of a new will; that Atty. Sikat, instead of preparing a new will, merely prepared a draft of a codicil,
amending said will, dated September 14, 1939, again naming said religious organization, among
others as beneficiary, and said draft of a codicil was also forwarded to the authorities of religious
organization, for their consideration and acceptance; but it was also rejected.
In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease,
and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez
of the Quiapo Church to make confession, after which she requested that holy mass be celebrated in
her house at No. 366 Raon Street, City of Manila, so that she might take holy communion; that
Mons. Fernandez caused the necessary arrangements to be made, and, as a matter of fact, on
November 1, 1942, holy mass was solemnized in her house by Father Teodoro Garcia, also of the
Quiapo Church, on which occasion, Encarnacion Neyra, who remained in bed, took holy
communion; that after the mass, Father Garcia talked to Encarnacion Neyra and advised
reconciliation between the two sisters, Encarnacion and Trinidad Neyra. Encarnacion accepted said
advise and, at about noon of the same day (November 1, 1942), sent Eustaquio Mendoza to fetch
her sister Trinidad, who came at about 2:30 that same afternoon; that the two sisters greeted each
other in most affectionate manner, and became reconciled and two had a long and cordial
conversation, in the course of which they also talked about the properties left by their father and their
litigations which had reached the Court of Appeals for the City of Manila, the instant case being the
second, and they agreed to have the latter dismissed, on the condition that the property involved
therein should be given exclusively to Trinidad Neyra, that the latter should waive her share in the
rents of said property collected by Encarnacion, and the Trinidad had no more indebtedness to
Encarnacion. They also agreed to send for Atty. Alejandro M. Panis, to prepare the necessary
document embodying the said agreement, but Attorney Panis could come only in the afternoon of
the following day, November 2, 1942, when Encarnacion gave him instructions for the preparation of
the document embodying their agreement, and other instructions for the preparation of her last will
and testament; that Attorney Panis prepared said document of compromise as well as the new will
and testament, naming Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to
Encarnacion's express instructions, and the two documents were prepared, in duplicate, and were
ready for signature, since the morning of November 3, 1942; that in the afternoon of that day, of
compromise and last will and testament to Encarnacion Neyra, slowly and in a loud voice, in the
presence of Father Teodoro Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, Trinidad Neyra, and
others, after which he asked her if their terms were in accordance with her wishes, or if she wanted
any change made in said documents; that Encarnacion Neyra did not suggest any change, and
asked for the pad and the two documents, and, with the help of a son of Trinidad, placed her
thumbmark at the foot of each one of the two documents, in duplicate, on her bed in the sala, in the
presence of attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa and Atty. Alejandro M.
Panis, after which said witnesses signed at the foot of the will, in the presence of Encarnacion
Neyra, and of each other. The agreement was also signed by Trinidad Neyra, as party, and by Dr. M.
B. Abad and Eustaquio Mendoza, a protege, as witnesses.

Father Teodoro Garcia was also present at the signing of the two documents, at the request of
Encarnacion Neyra.
The foregoing facts have been established by the witnesses presented by Trinidad Neyra, who are
all trustworthy men, and who had absolutely no interest in the final outcome of this case. Two of
them are ministers of the Gospel, while three of the attesting witnesses are professional men of
irreproachable character, who had known and seen and actually talked to the testatrix.
Petitioner Teodora Neyra, half sister of Encarnacion, and her young daughter Ceferina de la Cruz,
and Presentacion Blanco, daughter of petitioner Maria Jacobo Vda. de Blanco, substantially
corroborated the testimony of the witnesses presented by Trinidad Neyra, with reference to the
signing of documents, in the bedroom of Encarnacion Neyra, in the afternoon of November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz testified, however, that when the
thumbmark of Encarnacion Neyra was affixed to the agreement in question, dated November 3,
1942, she was sleeping on her bed in the sala; and that the attesting witnesses were not present, as
they were in the caida.
But Ceferina de la Cruz also stated that the attesting witnesses signed the documents thumbmarked
by Encarnacion Neyra, in the sala near her bed, thus contradicting herself and Teodora Neyra and
Presentacion Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that
Encarnacion Neyra's, thumbmark was affixed to the will, only in the morning of November 4, 1942,
by Trinidad Neyra and one Ildefonso del Barrio, when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature of effects of Addison's
disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion Neyra.
According to medical authorities, persons suffering from Addison's disease often live as long as ten
(10) years, while others die after a few weeks only, and that as the disease progresses, asthenia
sets in, and from 80 per cent to 90 per cent of the patients develop tuberculosis, and complications
of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935, pp. 1250-1253; McCrae, Osler's
Modern Medicine, 3d ed., Vol. V, pp. 272-279.)
And it has been conclusively shown that Encarnacion Neyra died on November 4, 1942, due to a
heart attack, at the age of 48, after an illness of about two (2) years.
In connection with mental capacity, in several cases, this court has considered the testimony of
witnesses, who had known and talked to the testators, more trustworthy than the testimony of the
alleged medical experts.
Insomnia, in spite of the testimony of two doctors, who testified for the opponents to the probate of a
will, to the effect that it tended to destroy mental capacity, was held not to effect the full possession
of mental faculties deemed necessary and sufficient for its execution. (Caguioa vs. Calderon, 20
Phil., 400.) The testatrix was held to have been compos mentis, in spite of the physician's testimony
to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis.
(Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony of the attending physician
that the deceased was suffering from diabetes and had been in a comatose condition for several

days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the
positive statement of several credible witnesses that he was conscious and able to understand what
was said to him and to communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.)
Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the
fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his will
(Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the execution of the will, the testator
intelligently and intelligibly conversed with other persons, although lying down and unable to move or
stand up unassisted, but could still effect the sale of property belonging to him, these circumstances
show that the testator was in a perfectly sound mental condition at the time of the execution of the
will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning
and also at about 6 o'clock in he afternoon of November 3, 1942, Encarnacion Neyra talked to her
that they understood each other clearly, thus showing that the testatrix was really of sound mind, at
the time of signing and execution of the agreement and will in question.
It may, therefore, be reasonably concluded that the mental faculties of persons suffering from
Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on
account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And
that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental
faculties until the moments of their death.
Judging by the authorities above cited, the logical conclusion is that Encarnacion Neyra was of
sound mind and possessed the necessary testamentary and mental capacity, at the time of the
execution of the agreement and will, dated November 3, 1942.
The contention that the attesting witnesses were not present, at the time Encarnacion Neyra
thumbmarked the agreement and will in question, on her bed, in the sala of the house, as they were
allegedly in the caida, is untenable. It has been fully shown that said witnesses were present, at the
time of the signing and execution of the agreement and will in question, in the sala, where the
testatrix was lying on her bed. The true test is not whether they actually saw each other at the time of
the signing of the documents, but whether they might have seen each other sign, had they chosen to
do so; and the attesting witnesses actually saw it all in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.)
And the thumbmark placed by the testatrix on the agreement and will in question is equivalent to her
signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.)
Teodora Neyra and her principal witnesses are all interested parties, as they are children of legatees
named in the will, dated September 14, 1939, but eliminated from the will, dated November 3, 1942.
Furthermore, the testimony of Teodora Neyra and her witnesses, to the effect that there could have
been no reconciliation between the two sisters, and that the thumbmark of Encarnacion Neyra was
affixed to the documents embodying the agreement, while she was sleeping, on November 3, 1942,
in their presence; and that her thumbmark was affixed to the will in question, when she was already
dead, in the morning of November 4, 1942, within their view, is absolutely devoid of any semblance
of truth. Said testimony is contrary to common sense. It violates all sense of proportion. Teodora
Neyra and her witnesses could not have told the truth; they have testified to deliberate falsefoods;
and they are, therefore, absolutely unworthy of belief. And to the evidence of the petitioners is

completely applicable the legal aphorism falsus in uno, falsus in omnibus. (Gonzales vs.Mauricio,
53 Phil., 728, 735.)
To show the alleged improbability of reconciliation, and the execution of the two documents, dated
November 3, 1942, petitioners have erroneously placed great emphasis on the fact that, up to
October 31, 1942, the two sisters Encarnacion and Trinidad Neyra were bitter enemies. They were
banking evidently on the common belief that the hatred of relatives is the most violent. Terrible
indeed are the feuds of relatives and difficult the reconciliation; and yet not impossible. They had
forgotten that Encarnacion Neyra was a religious woman instructed in the ancient virtues of the
Christian faith, and hope and charity, and that to forgive is a divine attribute. They had also forgotten
that there could be no more sublime love than that embalmed in tears, as in the case of a
reconciliation.
It was most natural that there should have been reconciliation between the two sisters, Encarnacion
and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole
blood. The approach of imminent death must have evoked in her the tenderest recollections of family
life. And believing perhaps that her little triumphs had not always brought her happiness, and that
she had always been just to her sister, who had been demanding insistently what was her due,
Encarnacion finally decided upon reconciliation, as she did not want to go to her eternal rest, with
hatred in her heart or wrath upon her head. It was, therefore, most logical that Encarnacion should
make Trinidad the benificiary of her generosity, under her last will and testament, and end all her
troubles with her, by executing said agreement, and thus depart in perfect peace from the scenes of
her earthly labors.
It having been shown that the said compromise or agreement had been legally signed and executed
by Encarnacion Neyra on November 3, 1942, in the presence of credible and trustworthy witnesses,
and that she was compos mentis and possessed the necessary testamentary and mental capacity of
the time; the petition for the reconsideration filed by Atty. Lucio Javillonar, on November 23, 1942, on
behalf of a client, Encarnacion Neyra, who had been dead since November 4, 1942, and some of
her relatives, who have appeared, in accordance with the provisions of section 17 of Rule 3 of the
Rules of Court, is hereby denied; and the decision of the Court of Appeals for Manila, dated
November 10, 1942, dismissing the appeal, is hereby re-affirmed, without costs. So ordered.

G.R. Nos. L-3272-73

November 29, 1951

MANUEL GONZALES, petitioner-appellant,

vs.
MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants.
Claro M. Recto for petitioner and appellant.
Reyes, Albert, Agcaoili and Raf. L. Arcega for petitioner and appellee.
Emiliano Pamintuan and Felixberto M. Serrano for oppositors and appellants.
PARAS, C.J.:
On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix)
died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales,

Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her
is estimated at P150,000.
On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition
(Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on
November 16, 1942 (Exhibit BManuel Gonzales), devising to Manuel Gonzales the greater portion
of the estate, without impairing the legitimes of the other children.
On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special
Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945
(Exhibit 1Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the
estate, without impairing the legitimes of the other children.
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the
wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity,
they had been revoked by the testatrix in an instrument executed by her on November 18, 1948
(Exhibit 2Alejandro and Juan Gonzales), with the result that her estate should be distributed as if
she died intestate.
With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one
or the other instruments tending to negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following
dispositive pronouncements:
All facts considered in the light of the evidence presented and in the manner in which the
witnesses testified the court concludes and holds:
First: That Exhibit B
Manuel Gonzales, though validly executed on November 16,
1942, was revoked by Exhibit 1Manolita G. Carungcong in accordance with the provisions
of section 623 of the Code of Civil Procedure.
Second: That Exhibit 2
Alejandro and Juan Gonzales being executed without the
knowledge and testamentary capacity of the testatrix and being contrary to the provisions of
section 618 of the Code of Civil Procedure, the said document is hereby declared null and
void.
Third:
That Exhibit 1

Manolita G. Carungcong having been executed in

accordance with law the same is hereby declared as the true and last will and testament of
the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate.
From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan
Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to
pay the proportionate share of the printing cost of the record on appeal.
In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the
following form and tenor:
IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng
PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina
ay mayroong tunay kong lagda o firma, gayon din ang lahat ng aking saksi o testigos.

SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite,
Filipinas ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o
pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang
kaliwa ng lahat at bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at
bawa't isang saksi o testigos at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o
nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa't isa sa kanila, at
ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat
at bawa't isa sa mga dahon o pagina nitong aking testamento.

(Sgd.) MANUELA Y. VDA. DE GONZALES

MANUELA IBARRA VDA. DE GONZALES

Mga Saksi o Testigos:

(Sgd.)
BIENVENIDO
(Sgd.)
TAHIMIK
(Sgd.) LUIS GAERLAN

DE

LOS
T.

REYES
SAYOC

It is contended for the appellants that this will does not contain any attestation clause; that, assuming
the concluding paragraph to be the attestation clause, it is not valid because it is the act of the
testatrix and not of the witnesses, and because it does not state the number of sheets or pages of
the will.
In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May,
1951 * we sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause
made by the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held:
The clause above quoted is the attestation clause referred to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it
appears to be an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as
to affect the validity of the will, it appearing that right under the signature of the testator, there
appear the signatures of the three instrumental witnesses.
Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion,
y Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or
writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does
not merely attest to the signature of the testator but also to the proper execution of the will.
The fact that the three instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not only to the genuineness of
his signature but also to the due execution of the will as embodied in the attestation clause.
The attestation clause in question bears also similarity with the attestation clause in the will
involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part

of the body of the will and its recital was made by the testatrix herself and was signed by her
and by the three instrumental witnesses. In upholding the validity of the will, the court said:
In reality, it appears that it is the testatrix who makes the declaration about the points in the
last paragraph of the will; however, as the witnesses, together with the testatrix, have signed
the said declaration, we are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of Act No. 2465.
Of course three of the Justices of this Court concurred in the result, "in the possibility that the
testator in the present case, or the person or persons who prepared the will had relied upon the
ruling laid down in the case ofAldaba vs. Roque, supra, and that it would now be unfair to reject the
present will when in its preparation a ruling of this Court has been followed." But the case at bar still
falls within this view, the will (Exhibit 1Manolita G. Carongcong) having been executed on May 5,
1945.
The attestation clause contained in the body of the will being thus valid, the statement in the
penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is
sufficient attestation which may be considered in conjunction with the last paragraph. It is significant
that the law does not require the attestation to be contained in a single clause. While perfection in
the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially when the authenticity of the will is not assailed, as in this case.
The result reached in respect of the sufficiency of the will (Exhibit 1Manolita G. Carongcong)
necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in
not admitting to probate the will (Exhibit BManuel Gonzales), since the latter will must be
considered revoked by the subsequent will (Exhibit 1Manolita G. Carongcong).
What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1
Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18,
1948 (Exhibit 2Alejandro and Juan Gonzales) which provides as follows:
Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa
ciudad ng Rizal, may mahusay at wastong pag-iisip at mabuting pagtatanda, sa
pamamagitan ng kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko ito at
ipinahahayag sa ngayon sa alin mang testamento o huling habilin na napirmahan kong una
sa kasulatang ito ay pinawawalan ko ng saysay at kabuluhang lahat pagkat hindi iyong tunay
kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito
1948, dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the
testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation,
and their contention was sustained by the trial court. We have examined the record and found no
valid reason for reversing the finding of said court which had the benefit of observing and hearing the
witnesses testify. Upon the other hand, the following considerations amply support the appealed
decision:.
1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On
November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital
upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital

authorities (Exhibit EManuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from
hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged
instrument of revocation was executed by her, the testatrix was in a comatose and unconscious
state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the
physical condition of the testatrix up to November 18, 1948:
P.
Y que hizo usted cuando Doa Manuela I. Vda. de Gonzales ya estaba en el hospital?
R. Me fui alla para examinarla.
P.
Cual era el resultado de su examen?R. Cuando fue al hospital a examinarla en el
primer dia via que la aphasia se agravo, o sea que ha perdido el poder de hablar
inteligentemente; tambien encontre que estaba inconsciente, durmiendo constantemente y
no se le podia, despertar, tenia la respiracion fatigosa, lenta y con estertores, y no podia
levantarse, asi que yo perscribi que diera el alimento por medio de hypodermoclysis, o sea
por medio de inyecciones.
Sr. PAMINTUAN.Quisieramos saber, Su Seoria, si se presenta al testigo como experto?
Sr. SERRANO.Tambien quisiera saber si se presenta como madico de la familia o como
medico experto?.
Sr. ARCEGA.Presento al testigo como medico de cabecere y como medico experto al
mismo tiempo.
P.
Y que hicieron en el hospital en vista de sus instrucciones?R. Cumplieron la
prescripcion mia.
P.
Que sucedio con respecto al estado de la paciente?R. La paciente a medida que
pasaban los dias se quedaba grave cada vez y mas graves los sintomas aun que al primer
dia en que fue ella llevada al hospital.
P.
Volviendome a la condicion de la paciente, en que estado se encontraba Doa
Manuela I. Vda. de gonzales el 14 de noviembre de 1948 antes de ingresarla en el hospital?
R. La encontre con aphasia, no podia hablar inteligentemente.
"P.
Puede usted explicar al Juzgado el curso de la enfermedad de Doa Manuela I. Vda.
de Gonzales?R. Estuvo agravandose desde el segundo dia en que fue ingresada al
hospital, y desde ese dia orinaba y deponia en la cama inconscientemente.
xxx

xxx

xxx

(t.s.n., Laquindanum, March 21, 1949, pp. 24-26.)

P.
Explique usted al Juzgado el curso de la enfermedad de la paciente haciendo
referencia de las fechas que aparecen en los Exhibitos 3 y 3-4?R. El noviembre 14,
ordene el ingreso de la paciente al Mercy Hospital, porque tuvo paralisis parcial en la
lengua, probablemente de origen embalismo o thrombosis cerebral, y como ya era de noche
no se llevo al hospital, sino el dia 15 de noviembre en donde le he hecho dos visitas; la
condicion de la paciente continuo empeorando hasta el dia 25 de noviembre en que
sobrevino la complicacion de pneumonia hypostatica hasta que fallecio el noviembre 27,
1948, a las 2:30 p.m.

xxx

xxx

xxx

(t.s.n., Laquindanum, March 21, 1948, pp. 28-29.)

JUZGADO.P. Como llego usted a esa conclusion de que desde el 14 de noviembre de
1948 en que usted ordeno la entrega de la paciente al hospital empeoro su salud hasta que
murio el dia 27 de noviembre de 1948?-R. Porque cada vez mas se acentua su estado
comatoso, y demas su respiracion se hacia mas fatigosa cada vez que pasaban los dias, y
con estertores.
P.
Y como estaba su estado mental?R. Estaba completamente inconsciente desde el
dia en que entro en el hospital.
Sr. ARCEGA. P.
hospital?-R. No, seor.

Podia hablar la paciente en la fecha en que fue ingresada al

P.
Despues del 15 de noviembre de 1948 en que segun usted fue ingresada la paciente
en el hospital podia hablar ella y hacer entender sus palabras?R. No, seor.
P.
Y que hacia la paciente?R. Estaba durmiendo continuamente, no podia abrir sus
ojos por si sola, sino que yo abria para ver la pupila.
P.
Trato usted de tener conversacion con la paciente?R. Naturalmente trataba, pero
contestaba, y ni creo que me entendia.
P.
Podia levantarse la paciente?R. No, seor, porque estaba en estado comtosos, y
para prevenir la pneumonia hypostatica dos o tres hombres tenian que levantaria y ponerla
algo de costado o algo asi reclinada.
P.
Y que resultado tuvo esa precaucion que usted tomo?R. Se ha retrasado o
retardado le pneumonia, pero sobrevino, al fin, que siempre es fatal.
P.
Usted dijo que al fin sobrevino la pneumonia, que efecto tuvo esa pneumonia a la
paciente?R. Precipito la muerte de la paciente.
P.
El 18 de noviembre de 1948, segun testimonio de los testigos, otorgaron el
documento Exhibit 2-Alejandro y Juan Gonzales, puede usted decir al Juzgado en que
estado se encontraba Doa Manuela I. Vda. de Gonzales?R. Estaba en estado comatoso.
P.
Por que sabe usted eso?R. Porque en esa fecha yo la visite dos veces: una por la
maana y otra por la tarde.
P.
Y estando en el estado comatoso, como usted, dice, puede usted decir al Juzgado si
podia ella hablar o entender sus palabras o su deseo?R. No, seor.
P.
Hizo usted esfuerzos para hacerie comprender sus palabras?R. Siempre
examinaba a ella para ver si reaccionaba favorablemente la paciente, pero cada vez era
peor.
P.
Puede usted decir si en aquella fecha la paciente podia siquiera hacer movimiento de
cabeza?R. No, seor, porque la parte derecha del cuerpo tenia hemiflejia o paralisis.

P.
Cual es la causa de oso que usted dice hemiflejia o paralisis?R. Generalmente se
debe a una hemorragia cerebral o trombosis del cerebro.
P.
Teniendo hemorragia cerebral o trombosis del cerebro, segun usted, cual es la parte
del cuerpo humano que queda afectada?R. La cabeza y tambien los brazos, como los
miembros del cuerpo.
P.

Que quiere usted decir como los miembros del cuerpo?R. Las manos y los pies.

P.

Podia mover la paciente sus manos y su cuerpo?R. La parte izquierda si.

P.

Y la parte derecha?-R. No, seor.

JUZGADO.Pero una persona en ese estado de salud, como estaba la paciente Doa
Manuela I. Vda. de Gonzales, el 18 de noviembre de 1948, podia comprender palabras
dichas a ella o indicaciones hechas por alguna persona a ella?R. No, seor.(t.s.n.
Laquindanum, March 21, 1948, pp. 30-33.).
While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert,
the latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses
tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation
was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because
even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the
testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the
last moment of the deceased and they were trying to make me an instrument in the accomplishment
of their aims," and that he had the idea that the testatrix was in doubtful condition because he "could
only judge from the people going there.".
It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have
ordered to "let her sit on bed or on chair and let her turn on her side sometime." However, Dr.
Leveriza has given the reason for this prescription, namely, to avoid hypostatic pneumonia.
In support of the contention that the testimony of the attesting witnesses should be given more
credence than the opinion of an expert witness, reliance is placed on the case of Caguioa vs.
Calderon, 20 Phil., 400; Bagtas vs. Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243;
Samson vs. Corrales Tan Quintin, 44 Phil., 573; Amata vs. Tablizo, 48 Phil., 485, and Neyra vs.
Neyra, 42, Off. Gaz., 2790 ** These cases are notably distinguishable from the case at bar. The
former refer to situations in which the doctors were not in a position to certify definitely as the
testamentary capacity of the testators at the time the wills therein involved were executed, because
they had not observed the testators on said dates or never saw them; whereas the case now before
us involves a family physician who attended the testatrix during her last illness and saw her on the
day when the alleged instrument of revocation was executed.
2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly
executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was
asked by the testatrix to prepare the necessary document as early as in the month of May, 1948,
and reminded about it for the second time weeks before November 1, 1948, and for the third time
several days before the latter date (November 1, 1948). The first excuse given by Jose Padilla for
the delay is that he was busy and the children of the testatrix had certain disputes which he tried to
settle. The second excuse is that he was not able to secure soon enough from Alejandro Gonzales,
Jr. some documents of transfer which he wanted to examine in connection with the preparation of
the desired instrument of revocation. We are inclined to state that these excuses are rather poor. If

Jose Padilla was too busy to give attention to the matter, he could have very easily informed the
testatrix and the latter, if really desirous of revoking her former wills, would have employed another
to prepare the requisite document. The fact that there were disputes between the children of the
testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was
it necessary to examine the documents relating to the properties of the testatrix, since the instrument
of revocation could be prepared without any reference to the details of her estate. Indeed, the
instrument (Exhibit 2Alejandro and Juan Gonzales) is couched in general terms.
3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is hard to rule that the testatrix
had sufficient testamentary capacity at the time of the execution of the alleged instrument of
revocation. In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix,
first, if she was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if
she was agreeable to the signing of said document by Constancio Padilla, to which two questions
the testatrix allegedly answered "Yes". It is not pretended that the testatrix said more about the
matter or gave any further instruction. The attesting witnesses were not introduced to the testatrix,
and their presence was not even mentioned to her. it is obviously doubtful whether the testatrix
understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the
affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her
manifestation of her desire to proceed, right then and there, with the signing of the questioned
instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot rightly
be said to have published her last will to the attesting witnesses.
The appealed decision is, therefore, affirmed without costs. So ordered.

G.R. No. 4445

September 18, 1909

CATALINA BUGNAO, proponent-appellee,

vs.
FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez and Del Rosario for appellants.
Fernando Salas for appellee.
CARSON, J.:
This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate
a document purporting to be the last will and testament of Domingo Ubag, deceased. The instrument
was propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was
contested by the appellants, who are brothers and sisters of the deceased, and who would be
entitled to share in the distribution of his estate, if probate were denied, as it appears that the
deceased left no heirs in the direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the execution of the
alleged will in the manner and form prescribed in section 618 of the Code of Civil Procedure; and
that at the time when it is alleged that the will was executed, Ubag was not of sound mind and
memory, and was physically and mentally incapable of making a will.
The instrument propounded for probate purports to be the last will and testament of Domingo Ubag,
signed by him in the presence of three subscribing and attesting witnesses, and appears upon its

face to have been duly executed in accordance with the provisions of the Code of Civil Procedure
touching the making of wills.
Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Mario, testified in support of the
will, the latter being the justice of the peace of the municipality wherein it was executed; and their
testimony was corroborated in all important details by the testimony of the proponent herself, who
was present when the will was made. It does not appear from the record why the third subscribing
witness was not called; but since counsel for the contestants makes no comment upon his absence,
we think it may safely be inferred that there was some good and sufficient reason therefore. In
passing, however, it may be well to observe that, when because of death, sickness, absence, or for
any other reason, it is not practicable to call to the witness stand all the subscribing witnesses to a
will offered for probate, the reason for the absence of any of these witnesses should be made to
appear of record, and this especially in cases such as the one at bar, wherein there is a contests.
The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that
the testator, at the time of its execution, was of sound mind and memory, and in their presence
attached his signature thereto as his last will and testament, and that in his presence and in the
presence of each other, they as well as the third subscribing witness. Despite the searching and
exhaustive cross-examination to which they were subjected, counsel for appellants could point to no
flaw in their testimony save an alleged contradiction as to a single incident which occurred at or
about the time when the will was executed a contradiction, however, which we think is more
apparent than real. One of the witnesses stated that the deceased sat up in bed and signed his
name to the will, and that after its execution food was given him by his wife; while the other testified
that he was assisted into a sitting position, and was given something to eat before he signed his
name. We think the evidence discloses that his wife aided the sick man to sit up in bed at the time
when he signed his name to the instrument, and that he was given nourishment while he was in that
position, but it is not quite clear whether this was immediately before or after, or both before and
after he attached his signature to the will. To say that the sick man sat up or raised himself up in bed
is not necessarily in conflict with the fact that he received assistance in doing so; and it is not at all
improbable or impossible that nourishment might have been given to him both before and after
signing the will, and that one witness might remember the former occasion and the other witness
might recall the latter, although neither witness could recall both. But, however this may have been,
we do not think that a slight lapse of memory on the part of one or the other witness, as to the
precise details of an unimportant incident, to which his attention may not have been particularly
directed, is sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and
accuracy of their recollection of the fact of the execution of the instrument. Of course, a number of
contradictions in the testimony of alleged subscribing witnesses to a will as to the circumstances
under which it was executed, or even a single contradiction as to a particular incident, where the
incident was of such a nature that the intention of any person who was present must have been
directed to it, and where the contradictory statements in regard to it are so clear and explicit as to
negative the possibility or probability of mistake, might well be sufficient to justify the conclusion that
the witnesses could not possibly have been present, together, at the time when it is alleged the will
was executed; but the apparent contradictions in the testimony of the witnesses in the case at bar
fall far short of raising a doubt a to their veracity, and on the other hand their testimony as a whole
gives such clear, explicit, and detailed account of all that occurred, and is so convincing and
altogether satisfactory that we have no doubt that the trial judge who heard them testify properly
accepted their testimony as worthy of entire confidence and belief.
The contestants put upon the stand four witnesses for the purpose of proving that at the time and on
the occasion when the subscribing witnesses testified that the will was executed, these witnesses

were not in the house with the testator, and that the alleged testator was at that time in such physical
and mental condition that it was impossible for him to have made a will. Two of these witnesses,
upon cross-examination, admitted that they were not in the house at or between the hours of four
and six in the afternoon of the day on which the will is alleged to have been made, this being the
time at which the witnesses in support of the will testified that it was executed. Of the other
witnesses, one is a contestant of the will, Macario Ubag, a brother of the testator, and the other,
Canuto Sinoy, his close relative. These witnesses swore that they were in the house of the
deceased, where he was lying ill, at or about the time when it is alleged that the will was executed,
and that at that time the alleged subscribing witnesses were not in the house, and the alleged
testator was so sick that he was unable to speak, to understand, or to make himself understood, and
that he was wholly incapacitated to make a will. But the testimony of Macario Ubag is in our opinion
wholly unworthy of credence. In addition to his manifest interest in the result of the investigation, it
clearly discloses a fixed and settled purpose to overthrow the will at all costs, and to that end an
utter disregard of the truth, and readiness to swear to any fact which he imagined would aid in
securing his object. An admittedly genuine and authentic signature of the deceased was introduced
in evidence for comparison with the signature attached to the will, but this witness in his anxiety to
deny the genuineness of the signature of his brother to the will, promptly and positively swore that
the admittedly genuine signature was not his brother's signature, and only corrected his erroneous
statement in response to a somewhat suggestive question by his attorney which evidently gave him
to understand that his former answer was likely to prejudice his own cause. On cross-examination,
he was forced to admit that because his brother and his brother's wife (in those favor the will was
made) were Aglipayanos, he and his other brothers and sisters had not visited them for many
months prior to the one particular occasion as to which testified; and he admitted further, that,
although he lived near at hand, at no time thereafter did he or any of the other members of his family
visit their dying brother, and that they did not even attend the funeral. If the testimony of this witness
could be accepted as true, it would be a remarkable coincidence indeed, that the subscribing
witnesses to the alleged will should have falsely pretended to have joined in its execution on the very
day, and at the precise hour, when this interested witness happened to pay his only visit to his
brother during his last illness, so that the testimony of this witness would furnish conclusive evidence
in support of the allegations of the contestants that the alleged will was not executed at the time and
place or in the manner and form alleged by the subscribing witnesses. We do not think that the
testimony of this witness nor any of the other witnesses for the contestants is sufficient to raise even
a doubt as to the truth of the testimony of the subscribing witnesses as to the fact of the execution of
the will, or as to the manner and from in which it was executed.
In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in
evidence, and upon a comparison of this signature with the signature attached to the instrument in
question, we are wholly of the opinion of the trial judge, who held in this connection as follows:
No expert evidence has been adduced with regard to these two signatures, and the
presiding judge of this court does not claim to possess any special expert knowledge in the
matter of signatures; nevertheless, the court has compared these two signatures, and does
not find that any material differences exists between the same. It is true that the signature
which appears in the document offered for authentication discloses that at the time of writing
the subscriber was more deliberate in his movements, but two facts must be acknowledge:
First, that the testator was seriously ill, and the other fact, that for some reason which is not
stated the testator was unable to see, and was a person who was not in the habit of signing
his name every day.

These facts should sufficiently explain whatever difference may exist between the two
signatures, but the court finds that the principal strokes in the two signatures are identical.
That the testator was mentally capable of making the will is in our opinion fully established by the
testimony of the subscribing witnesses who swore positively that, at the time of its execution, he was
of sound mind and memory. It is true that their testimony discloses the fact that he was at that time
extremely ill, in an advanced stage of tuberculosis complicated with severe intermittent attacks of
asthma; that he was too sick to rise unaided from his bed; that he needed assistance even to rise
himself to a sitting position; and that during the paroxysms of asthma to which he was subject he
could not speak; but all this evidence of physical weakness in no wise establishes his mental
incapacity or a lack of testamentary capacity, and indeed the evidence of the subscribing witnesses
as to the aid furnished them by the testator in preparing the will, and his clear recollection of the
boundaries and physical description of the various parcels of land set out therein, taken together
with the fact that he was able to give to the person who wrote the will clear and explicit instructions
as to his desires touching the disposition of his property, is strong evidence of his testamentary
capacity.
Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator
to his widow, and wholly fails to make any provision for his brothers or sisters, indicates a lack of
testamentary capacity and undue influence; and because of the inherent improbability that a man
would make so unnatural and unreasonable a will, they contend that this fact indirectly corroborates
their contention that the deceased never did in fact execute the will. But when it is considered that
the deceased at the time of his death had no heirs in the ascending or descending line; that a bitter
family quarrel had long separated him from his brothers and sisters, who declined to have any
relations with the testator because he and his wife were adherents of the Aglipayano Church; and
that this quarrel was so bitter that none of his brothers or sisters, although some of them lived in the
vicinity, were present at the time of his death or attended his funeral; we think the fact that the
deceased desired to leave and did leave all of his property to his widow and made no provision for
his brothers and sisters, who themselves were grown men and women, by no means tends to
disclose either an unsound mind or the presence of undue influence on the part of his wife, or in any
wise corroborates contestants' allegation that the will never was executed.
It has been said that "the difficulty of stating standards or tests by which to determine the degree of
mental capacity of a particular person has been everywhere recognized, and grows out of the
inherent impossibility of measuring mental capacity, or its impairment by disease or other causes"
(Greene vs. Greene, 145 III., 264, 276); and that "it is probable that no court has ever attempted to
lay down any definite rule in respect to the exact amount of mental capacity requisite for the making
of a valid will, without appreciating the difficulty of the undertaking" (Trish vs. Newell, 62 III., 196,
203).
Between the highest degree of soundness of mind and memory which unquestionably carries with it
full testamentary capacity, and that degree of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity, and while on one hand it has
been held that "mere weakness of mind, or partial imbecility from the disease of body, or from age,
will not render a person incapable of making a will, a weak or feeble minded person may make a
valid will, provided he has understanding memory sufficient to enable him to know what he is about,
and how or to whom he is disposing of his property" (Lodge vs.Lodge, 2 Houst. (Del.), 418); that, "To
constitute a sound and disposing mind, it is not necessary that the mind should be unbroken or
unimpaired, unshattered by disease or otherwise" (Sloan vs. Maxwell, 3 N. J. Eq., 563); that "it has

not been understood that a testator must possess these qualities (of sound and disposing mind and
memory) in the highest degree. . . . Few indeed would be the wills confirmed, if this is correct. Pain,
sickness, debility of body, from age or infirmity, would, according to its violence or duration, in a
greater or less degree, break in upon, weaken, or derange the mind, but the derangement must be
such as deprives him of the rational faculties common to man" (Den. vs. Vancleve, 5 N. J. L.,680);
and, that "Sound mind does not mean a perfectly balanced mind. The question of soundness is one
of degree" (Boughton vs. Knight, L. R.,3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been
held that "testamentary incapacity does not necessarily require that a person shall actually be insane
or of an unsound mind. Weakness of intellect, whether it arises from extreme old age from disease,
or great bodily infirmities or suffering, or from all these combined, may render the testator incapable
of making a valid will, providing such weakness really disqualifies her from knowing or appreciating
the nature, effects, or consequences of the act she is engaged in" (Manatt vs. Scott, 106 Iowa, 203;
68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of
testamentary capacity which will cover all possible cases which may present themselves, because,
as will be seen from what has already been said, the testator was, at the time of making the
instrument under consideration, endowed with all the elements of mental capacity set out in the
following definition of testamentary capacity which has been frequently announced in courts of last
resort in England and the United States; and while is some cases testamentary capacity has been
held to exist in the absence of proof of some of these elements, there can be no question that, in the
absence of proof of very exceptional circumstances, proof of the existence of all these elements in
sufficient to establish the existence of testamentary capacity.
Testamentary capacity is the capacity to comprehend the nature of the transaction which the
testator is engaged at the time, to recollect the property to be disposed of and the person
who would naturally be supposed to have claims upon the testator, and to comprehend the
manner in which the instrument will distribute his property among the objects of his bounty.
(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71,
second edition.)
In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of
the instrument propounded as the last will and testament of the deceased; that it was made in strict
conformity with the requisites prescribed by law; and that, at the time of its execution, the deceased
was of sound mind and memory, and executed the instrument of his own free will and accord.
The order probating the will should be land is hereby affirmed, with the cost of this instance against
the appellants.