Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO
MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO,petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to
the present one and involving the same parties had already been decided by us in the past. In G.R. No. L30479, 1which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed
the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of
First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed
by the private respondents presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed
the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court
on a petition for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have
already been revoked by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of the adverse decision proved to be of no avail, hence,
this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina
Maloto-Casiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted
in the then Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However,
while the case was still in progress, or to be exact on February 1, 1964, the parties Aldina, Constancio,
Panfilo, and Felino executed an agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval which the court did on March
21, 1964. That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's
counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULATAN (Testamento)," dated January 3,1940, and purporting to be the last will and testament of Adriana. Atty.
Palma claimed to have found the testament, the original copy, while he was going through some materials
inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted to the office of the
clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still
named as heirs in the said will, Aldina and Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement

they had earlier signed. The will likewise gives devises and legacies to other parties, among them being
the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the
will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial court denied their motion, the petitioner came to us
by way of a petition for certiorari and mandamus assailing the orders of the trial court . 3 As we stated
earlier, we dismissed that petition and advised that a separate proceeding for the probate of the alleged will
would be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document
or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions
of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to
retrieve a copy of the will left in the latter's possession, and, her seeking the services of Atty. Palma in order
to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even
considered collectively, as sufficient bases for the conclusion that Adriana Maloto's will had been effectively
revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The
heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it,
by the testator himself, or by some other person in his presence, and by his express
direction. If burned, torn cancelled, or obliterated by some other person, without the
express direction of the testator, the will may still be established, and the estate distributed
in accordance therewith, if its contents, and due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator.
It is not imperative that the physical destruction be done by the testator himself. It may be performed by
another person but under the express direction and in the presence of the testator. Of course, it goes
without saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind,
yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction. There is paucity of evidence to show compliance
with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana Maloto. For another, the burning
was not proven to have been done under the express direction of Adriana. And then, the burning was not

in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the only ones
present at the place where the stove (presumably in the kitchen) was located in which the papers proffered
as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the
will's revocation appear "inconclusive." We share the same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were
unequivocably positive that the document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on
the other hand, obtained his information that the burned document was the will because Guadalupe told
him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not
denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be
shaken to its very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate instituted by the
petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought
about by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court
in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the
case, and their prayer to annul the previous proceedings therein and to allow the last will and testament of
the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar
to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2)
the former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3)
the former judgment is a judgment on the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's
will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved
only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither
is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in
the intestate proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an
action for probate, as it implies, is founded on the presence of a will and with the objective of proving its
due execution and validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no
Identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the
petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these
grounds alone, the position of the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a)
major and substantial bulk of the properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, more
valuable properties have been acquired after the execution of the will on January 3,1940." 7 Suffice it to
state here that as these additional matters raised by the private respondents are extraneous to this special
proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate
of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June
7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one
ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.

Footnotes
1 Constancio Maloto, et al. vs. Hon. Emigdio V. Nietes, etc., et al., May 14, 1969.
2 G.R. No. L-32328.
3 G.R. No. L-30479, supra.
4 Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46 SCRA 538, 565-566,
quoted in: Maninang vs. Court of Appeals, No. L-57848, June 19, 1982, 114 SCRA 78.
5 Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049, April 15, 1985, 135 SCRA 678;
Martinez vs. Court of Appeals, No. L-41425, November 11, 1985,139 SCRA 558.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2538

September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositorsappellants brought the case on appeal to this Court for the reason that the value of the properties involved
exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without
leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife,
the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants,
Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918,
(Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which
was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on
June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and the case was reopened.
After hearing, at which both parties presented their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed
another petition for the probate of the will executed by the deceased on August 17, 1918, which was
docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition
to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the
will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has
been subsequently revoked. But before the second petition could be heard, the battle for liberation came
and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the
same was found to be impossible because neither petitioner nor oppositors could produce the copies
required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to
the one destroyed, to which the oppositors filed an opposition based on the same grounds as those
contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued
an order admitting the will to probate already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands"
and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding
that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order
to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto
Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said
will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps
deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of
the 1918 will which she believed would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings No.
8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise
them in these proceedings which are entirely new and distinct and completely independent from the other
is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this
case. They are merely based on the presumptions and conjectures not supported by any proof. For this
reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub
silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is indeed
no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the
probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room
to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later
to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart
from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner
when she informed the court that she was unable to impeach the character of her witness Canuto Perez
because of her inability to find witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an
incident that comes within the province of the former case. The failure of petitioner to present the testimony
of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because
his whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner
so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed
on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently,
however, upon petition of the herein oppositors, the order of the court admitting said will to probate was set
aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening
was ordered because of the strong opposition of the oppositors who contended that he will had not been
executed as required by law. After the evidence of both parties had been presented, the oppositors filed an
extensive memorandum wherein they reiterated their view that the will should be denied probate. And on
the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she
may easily acquire through consultation with a lawyer, there was no need her to go through the order of
filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will
or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for
her conscience was clear and bade her to take the only proper step possible under the circumstances,
which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will
was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein
appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened?
Is it her fault that the order admitting the will to probate was set aside? That was a contingency which
petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy
of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she
exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third
errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel
which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain
the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her
husband as his universal heir. Nor can she be charged with bad faith far having done so because of her
desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased
which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory
clause is valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs.
Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this
case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we are
indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what
those facts are; it is enough to point out that they contain many points and circumstances in common. No
reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not
apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the
reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is
archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but merely represents the point of view of the minority and
should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this
contention. And these authorities hold the view, that "an express revocation is immediately effective upon
the execution of the subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be in controlling the states where the decisions had been promulgated, however, we are
reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search
we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions
perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject
of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities
is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American
Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our
opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of
wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which
permit the revocation of a will by another writing provide that to be effective as a revocation, the
writing must be executed with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making
of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will itself, although it may
effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve
to himself the power to modify a will by a written instrument subsequently prepared but not executed
in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid
because of the incapacity of the testator, or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there
is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent
will or other writing executed with the same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it cannot be said that there is a writing
which complies with the statute. Moreover, a will or codicil which, on account of the manner in
which it is executed, is sufficient to pass only personally does not affect dispositions of real estate
made by a former will, even though it may expressly purport to do so. The intent of the testator to
revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume
123, there appear many authorities on the "application of rules where second will is invalid", among which
a typical one is the following:
It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other words,

where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort
vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will,
codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should
be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the
case of wills", simply because it was denied probate. And even if it be regarded as any other writing within
the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it
cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot
still be given effect because of the presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory
clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason
the will submitted by petitioner for probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The
only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it,
gave the original and copies to the testator himself and apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among
the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein
petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first
will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy,
the testator deemed it wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that
there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter
cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he
had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier
will was but the necessary consequence of the testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that
the earlier will can still be admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed as a
consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of another
will so as fairly to raise the inference that the testator meant the revocation of the old to depend
upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional
and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended
to be made as a substitute is inoperative, the revocation fails and the original will remains in full
force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition
upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive
conditions, and hence prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the destruction conditional. It must
appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p.
751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect
of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will
of 1939 has been validly executed and would be given due effect. The theory on which this principle is
predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he
executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore
be no mistake as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution
of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez,
and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So
the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony
is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of
Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the
will upon the express desire and instruction of the testator, The testimony of these witnesses shows that
the will had been executed in the manner required by law. We have read their testimony and we were
impressed by their readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl.nt
Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA deceased,
MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section
3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal
for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by
the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by failing to produce
the will within twenty days of the death of the testator as required by Rule 75, section 2 of
the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a disposition of property
after death and was not intended to take effect after death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed and attested
as required by law.
The appellees likewise moved for the consolidation of the case with another case Sp. Proc.
No, 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent Ricardo
B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike
ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its order
of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic will is lost, a
copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter
of holographic wills the law, it is reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January
25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than
14 years from the time of the execution of the will to the death of the decedent, the fact that
the original of the will could not be located shows to our mind that the decedent had
discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is
contended that the dismissal of appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not
involve question of fact and alleged that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY
NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED
BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot be found can be proved by
means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the
allowance of the will by the court after its due execution has been proved. The probate may be uncontested
or not. If uncontested, at least one Identifying witness is required and, if no witness is available, experts
may be resorted to. If contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available, the will can not be probated
because the best and only evidence is the handwriting of the testator in said will. It is necessary that there
be a comparison between sample handwritten statements of the testator and the handwritten will. But, a
photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that

"the execution and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise,
it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the
photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to approve
the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.

SECOND DIVISION
[G.R. No. L-14003. August 5, 1960.]
FEDERICO AZAOLA, Petitioner-Appellant, v. CESARIO SINGSON, Oppositor-Appellee.
F. Lavides and L. B. Alcuaz for Appellant.
Vicente J. Cuna and P. S. Singson for Appellee.

SYLLABUS

1. WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF; REQUISITE AS TO NUMBER
OF WITNESSES. Since the authenticity of the holographic will was not contested, proponent was not
required to produce more than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at the execution of a holographic will, none being
required by law, it becomes obvious that the existence of witnesses possessing the requisite qualifications
is
a
matter
beyond
the
control
of
the
proponent.
2. ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE. Where the will is
holographic, no witness need be present and the rule requiring production of three witnesses must be
deemed
merely
permissive
if
absurd
results
are
to
be
avoided.
3. ID.; RESORT TO EXPERT EVIDENCE. Under Article 811, the resort to expert evidence is conditioned
by the words "if the Court deem it necessary", which reveals that what the law deems essential is that the
Court should be convinced of the wills authenticity.

DECISION

REYES, J. B. L., J.:

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the Court of First
Instance of Quezon City in its Special Proceedings No. Q-2640, involves the determination of the quantity
of
evidence
required
for
the
probate
of
a
holographic
will.
The established facts are thus summarized in the decision appealed from (Rec. App. pp. 2224):jgc:chanrobles.com.ph
"Briefly speaking, the following facts were established by the petitioner; that on September 9, 1957,
Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last residence of said testatrix;
that Francisco Azaola, petitioner herein for probate of the holographic will, submitted the said holographic
will (Exh. C) whereby Maria Milagros Azaola was made the sole heir as against the nephew of the deceased
Cesario Singson; that witness Francisco Azaola testified that he saw the holographic will (Exh. C) one

month, more or less, before the death of the testatrix, as the same was handed to him and his wife; that the
witness testified also that he recognized all the signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement, witness presented the mortgage (Exh. E), the
special power of attorney (Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for comparison purposes;
that said witness, Azaola, testified that the penmanship appearing in the aforesaid documentary evidence
is in the handwriting of the testatrix as well as the signatures appearing therein are the signatures of the
testatrix; that said witness, in answer to a question of his counsel admitted that the holographic will was
handed to him by the testatrix, "apparently it must have been written by her" (t.s.n., p. 11). However, on
page 16 on the same transcript of the stenographic notes, when the same witness was asked by counsel
if he was familiar with the penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the affirmative and when he was asked again whether the penmanship referred to
in the previous answer as appearing in the holographic will (Exh. C) was hers (testatrix), he answered, "I
would definitely say it is hers" ; that it was also established in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City, is in the amount of P7,000.00."cralaw virtua1aw library
The opposition to the probate was on the ground that (1) the execution of the will was procured by undue
and improper pressure and influence on the part of the petitioner and his wife, and (2) that the testatrix did
not seriously intend the instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent must present
three witnesses who could declare that the will and the signature are in the writing of the testatrix, the
probate being contested; and because the lone witness presented by the proponent "did not prove
sufficiently that the body of the will was written in the handwriting of the testatrix."cralaw virtua1aw library
The proponent appealed, urging: first, that he was not bound to produce more than one witness because
the wills authenticity was not questioned; and second, that Article 811 does not mandatorily require the
production of three witnesses to identify the handwriting and signature of a holographic will, even if its
authenticity
should
be
denied
by
the
adverse
party.
Article 811 of the Civil Code of the Philippines is to the following effect:jgc:chanrobles.com.ph
"ART. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court deems it
necessary,
expert
testimony
may
be
resorted
to.
(691a)"
We agree with the appellant that since the authenticity of the will was not contested, he was not required
to produce more than one witness; but even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of a holographic will,
none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely
a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting
and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator." There may be no available witness
acquainted with the testators hand; or even if so familiarized, the witnesses may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility.
That is evidently the reason why the second paragraph of Article 811 prescribes that
"in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it

necessary,

expert

testimony

may

be

resorted

to."cralaw

virtua1aw

library

As can be seen, the law foresees the possibility that no qualified witness may be found (or what amounts
to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and
provides
for
resort
to
expert
evidence
to
supply
the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested
and only one if no contest is had) was derived from the rule established for ordinary testaments (cf. Cabang
v. Delfinado, 45 Phil., 291; Tolentino v. Francisco, 57 Phil. 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words "if the Court deem it
necessary", which reveal that what the law deems essential is that the Court should be convinced of the
wills authenticity. Where the prescribed number of witnesses is produced and the court is convinced by
their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the
other hand, if no competent witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true intention of the
testator
be
carried
into
effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the noted
Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely remarks:jgc:chanrobles.com.ph
"La manera como esta concebida la redaccin del ltimo apartado de dicho precepto induce la conclusin
de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe acudir al criterio pericial para
que le ilustre acerca de la autenticidad del testamento olgrafo, aunque ya estn insertas en los autos del
expediente las declaraciones testificales. La prudencia con que el Juez debe de proceder en resoluciones
de transcendencia asi lo exige, y la indole delicada y peligrosa del testamento olgrafo lo hace necesario
para
mayor
garantia
de
todos
los
intereses
comprometidos
en
aquel.
En efecto, el cotejo pericial de letras puede ser una comfirmacin facultativa del dicho profano de los
testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca de la autenticidad
que trata de averiguar y declarar. Para eso se ha escrito la frase del citado ltimo apartado, (siempre que
el Juez lo estime conveniente), haya habido o no testigos y dudaran o no estos respecto de los extremos
por
que
son
preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de los sucesos y de su significacin,
para responder debidamente de las resoluciones que haya de dictar."cralaw virtua1aw library
And because the law leaves it to the trial court to decide if experts are still needed, no unfavourable
inference can be drawn from a partys failure to offer expert evidence, until and unless the court expresses
dissatisfaction
with
the
testimony
of
the
lay
witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil Code is merely directory and
is
not
mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon to construe
the import of said article, the interest of justice would be better served, in our opinion, by giving the parties
ample opportunity to adduce additional evidence, including expert witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed from is set aside, and the records ordered remanded to the
Court of origin, with instructions to hold a new trial in conformity with this opinion. But evidence already on

record

shall

not

be

retaken.

No

costs.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcin, Barrera, and Gutirrez David, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM,
EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.

AQUINO, J.:+.wph!1
The question in this case is whether a petition for allowance of wills and to annul a partition, approved in
anintestate proceeding by Branch 20 of the Manila Court of First Instance, can be entertained by its Branch
38 (after a probate in the Utah district court).
Antecedents. Edward M. Grimm an American resident of Manila, died at 78 in the Makati Medical Center
on November 27, 1977. He was survived by his second wife, Maxine Tate Grimm and their two children,
named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita Grimm Morris and Ethel Grimm
Roberts (McFadden), his two children by a first marriage which ended in divorce (Sub-Annexes A and B.
pp. 36-47, Rollo).
He executed on January 23, 1959 two wills in San Francisco, California. One will disposed of his Philippine
estate which he described as conjugal property of himself and his second wife. The second win disposed
of his estate outside the Philippines.
In both wills, the second wife and two children were favored. The two children of the first marriage were
given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his
property outside this country, the testator said: t.hqw
I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or
my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for
each of them in a separate will disposing of my Philippine property. (First clause, pp. 4347, Rollo).
The two wills and a codicil were presented for probate by Maxine Tate Grimm and E. LaVar Tate on March
7, 1978 in Probate No. 3720 of the Third Judicial District Court of Tooele County, Utah. Juanita Grimm
Morris of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street, Horseshoe Village, Quezon City
were notified of the probate proceeding (Sub-Annex C, pp. 48-55, Rollo).
Maxine admitted that she received notice of the intestate petition filed in Manila by Ethel in January, 1978
(p. 53, Rollo). In its order dated April 10, 1978, the Third Judicial District Court admitted to probate the two
wills and the codicil It was issued upon consideration of the stipulation dated April 4, 1978 "by and between

the attorneys for Maxine Tate Grimm, Linda Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley
Grimm (first wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-51, Rollo).
Two weeks later, or on April 25, 1978, Maxine and her two children Linda and Pete, as the first parties, and
Ethel, Juanita Grimm Morris and their mother Juanita Kegley Grimm as the second parties, with knowledge
of the intestate proceeding in Manila, entered into a compromise agreement in Utah regarding the estate.
It was signed by David E. Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and Linda
and the attorney-in-fact of Maxine and by the attorney-in-fact of Ethel, Juanita Grimm Morris and Juanita
Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal
representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's
one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000
plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the
"net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm (par.
5).
It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable
Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the total of the net
distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was
executed by the parties (Sub-Annex F, pp. 49-61, Annex, F-1, pp. 75-76, Testate case).
Intestate proceeding No. 113024.-At this juncture, it should be stated that forty- three days after Grimm's
death, or January 9, 1978, his daughter of the first marriage, Ethel, 49, through lawyers Deogracias T.
Reyes and. Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First Instance intestate
proceeding No. 113024for the settlement of his estate. She was named special administratrix.
On March 11, the second wife, Maxine, through the Angara law office, filed an opposition and motion to
dismiss the intestate proceeding on the ground of the pendency of Utah of a proceeding for the probate of
Grimm's will. She also moved that she be appointed special administratrix, She submitted to the court a
copy of Grimm's will disposing of his Philippine estate. It is found in pages 58 to 64 of the record.
The intestate court in its orders of May 23 and June 2 noted that Maxine, through a new lawyer, William C.
Limqueco (partner of Gerardo B. Macaraeg, p. 78, testate case withdrew that opposition and motion to
dismiss and, at the behest of Maxine, Ethel and Pete, appointed them joint administrators. Apparently, this
was done pursuant to the aforementioned Utah compromise agreement. The court ignored the will already
found in the record.
The three administrators submitted an inventory. With the authority and approval of the court, they sold for
P75,000 on March 21, 1979 the so-called Palawan Pearl Project, a business owned by the deceased. Linda
and Juanita allegedly conformed with the sale (pp. 120-129, Record). It turned out that the buyer, Makiling
Management Co., Inc., was incorporated by Ethel and her husband, Rex Roberts, and by lawyer Limqueco
(Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they sold for P1,546,136 to Joseph
Server and others 193,267 shares of RFM Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and filed by lawyers Limqueco and
Macaraeg (not signed by Maxine and her two children), Judge Conrado M. Molina in his order of July 27,
1979 adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate and one-eighth (1/8) each to
his four children or 12-1/2% (pp. 140-142, Record). No mention at all was made of the will in that order.
Six days later, or on August 2, Maxine and her two children replaced Limqueco with Octavio del Callar as
their lawyer who on August 9, moved to defer approval of the project of partition. The court considered the

motion moot considering that it had already approved the declaration of heirs and project of partition (p.
149, Record).
Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that he was no longer connected with
Makiling Management Co., Inc. when the Palawan Pearl Project was sold: that it was Maxine's son Pete
who negotiated the sale with Rex Roberts and that he (Limqueco) was going to sue Maxine for the lies she
imputed to him (Annex H, p. 78, testate case).
Ethel submitted to the court a certification of the Assistant Commissioner of Internal Revenue dated October
2, 1979. It was stated therein that Maxine paid P1,992,233.69 as estate tax and penalties and that he
interposed no objection to the transfer of the estate to Grimm's heirs (p. 153, Record). The court noted the
certification as in conformity with its order of July 27, 1979.
After November, 1979 or for a period of more than five months, there was no movement or activity in the
intestate case. On April 18, 1980 Juanita Grimm Morris, through Ethel's lawyers, filed a motion for
accounting "so that the Estate properties can be partitioned among the heirs and the present intestate
estate be closed." Del Callar, Maxine's lawyer was notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law firm filed again its appearance in
collaboration with Del Callar as counsel for Maxine and her two children, Linda and Pete. It should be
recalled that the firm had previously appeared in the case as Maxine's counsel on March 11, 1978, when it
filed a motion to dismiss the intestate proceeding and furnished the court with a copy of Grimm's will. As
already noted, the firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. On September 8, 1980, Rogelio A. Vinluan
of the Angara law firm in behalf of Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition
praying for the probate of Grimm's two wills (already probated in Utah), that the 1979 partition approved by
the intestate court be set aside and the letters of administration revoked, that Maxine be appointed executrix
and that Ethel and Juanita Morris be ordered to account for the properties received by them and to return
the same to Maxine (pp. 25-35, Rollo).
Grimm's second wife and two children alleged that they were defraud due to the machinations of the
Roberts spouses, that the 1978 Utah compromise agreement was illegal, that the intestate proceeding is
void because Grimm died testate and that the partition was contrary to the decedent's wills.
Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for lack of merit in his order of October
27, 1980. Ethel then filed a petition for certiorari and prohibition in this Court, praying that the testate
proceeding be dismissed, or. alternatively that the two proceedings be consolidated and heard in Branch
20 and that the matter of the annulment of the Utah compromise agreement be heard prior to the petition
for probate (pp. 22-23, Rollo).
Ruling. We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack
of jurisdiction, in denying Ethel's motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either
real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of
Court).
The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio,
L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should
be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate
proceeding and the judge assigned to the testate proceeding should continue hearing the two cases.

Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the
petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita
G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other
papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is dissolved. No costs.
SO ORDERED.1wph1.t
Makasiar (Chairman), Guerrero and De Castro, JJ., concur.
Escolin, J., concur in the result.
Concepcion, Jr. and Abad Santos, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 123486

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution
denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the authenticity of testators holographic will has been established and the handwriting
and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment
appealed from and the probate of the holographic will in question be called for. The rule is that after
plaintiff has completed presentation of his evidence and the defendant files a motion for judgment
on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right
to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses
his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate
of the holographic will of the testator Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of
the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court,
Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on
January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and
disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence,
and duress employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and personal property was about
P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition 5 to the petition for
probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an
impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda. de
Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out
of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the
signature should appear at the bottom after the dispositions, as regularly done and not after every
disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured

by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and
trickery.1wphi1.nt
Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of
presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda.
de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well
taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported
Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence
and lack of merits.7
On December 12, 1990, respondents filed a notice of appeal, 8 and in support of their appeal, the
respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6)
Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for
the probate of the holographic will of the deceased was filed. He produced and identified the records of the
case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for
the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's
affidavit of the decedent. However, the voters' affidavit was not produced for the same was already
destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and
that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years
from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired
familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seo Vda.
de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always
issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the
records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left
a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by
the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of
the deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a
practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with
the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde
Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and
Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture

permit and was familiar with the signature of the deceased, since the signed documents in her presence,
when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since
birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the
signature of the deceased. She testified that the signature appearing in the holographic will is the true and
genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay,
Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing
the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a
recognized authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article
811 of our present civil code can not be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator, under penalty of having the probate
denied. Since no witness may have been present at the execution of the holographic will, none
being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not
merely a question of finding and producing any three witnesses; they must be witnesses "who know
the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the
law does not express) "that the will and the signature are in the handwriting of the testator." There
may be no available witness acquainted with the testator's hand; or even if so familiarized, the
witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of
article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if the court
deems it necessary, expert testimony may be resorted to.
As can be see, the law foresees, the possibility that no qualified witness ma be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the authenticity
of the will), and provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented if the will is
contested and only one if no contest is had) was derived from the rule established for ordinary
testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it
can not be ignored that the requirement can be considered mandatory only in case of ordinary
testaments, precisely because the presence of at least three witnesses at the execution of ordinary
wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness
need be present (art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem
it necessary", which reveal that what the law deems essential is that the court should be convinced
of the will's authenticity. Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those produced is

convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the
court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested,
Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the holographic will. And the rule requiring the
production of three witnesses is merely permissive. What the law deems essential is that the court
is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the
state is as much interested in the proponent that the true intention of the testator be carried into
effect. And because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless
the court expresses dissatisfaction with the testimony of the lay witnesses. 10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses
definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were
those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal
Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and
signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the
respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to
present credible evidence to that the date, text, and signature on the holographic will written entirely
in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will
of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or
mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at
least three witnesses explicitly declare that the signature in the will is the genuine signature of the
testator.1wphi1.nt
We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word
"shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall,"
when used in a statute is mandatory.11
Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent.
In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat
the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true intent of the
deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true
intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified explicitly that they were
familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance,
Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was
not presented to declare explicitly that the signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature
of the deceased in the voter's affidavit, which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at
Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did
Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12
xxx

xxx

xxx

Q. Who sometime accompany her?

A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
xxx

xxx

xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one
of the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records
of the accounts of her tenants?

A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.14
xxx

xxx

xxx

Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale
which you said what else did you do to acquire familiarity of the signature of Matilde Vda De
Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
xxx

xxx

xxx

Q. You testified that at time of her death she left a will. I am showing to you a document with its
title "tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.16
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or
gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found
in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:

Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda
de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession
of your mother?
A. 1985.17
xxx

xxx

xxx

Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and
therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when she died.
Q. After taking that document you kept it with you?
A. I presented it to the fiscal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally
adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to
petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?
A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely and she could go to
her building to collect rentals, is that correct?
A. Yes, sir.19
xxx

xxx

xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings
in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards
letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
xxx

xxx

xxx

Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified
a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months
from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully
written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly
and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present and you just tried to
explain yourself out because of the apparent inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the
signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here
refers to one of the petitioners?
A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in
the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will
notice the hesitancy and tremors, do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of
the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the
period of 22 years. Could you tell the court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to market and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde
Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
xxx

xxx

xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is
a signature here below item No. 1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the
deceased was because she lived with her since birth. She never declared that she saw the deceased write
a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am
related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
xxx

xxx

xxx

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have
legitimate children?
A. As far as I know they have no legitimate children.25
xxx

xxx

xxx

Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that,
Fiscal?
A. It is about the project partition to terminate the property, which was under the court before. 26
xxx

xxx

xxx

Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit
N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde
vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
xxx

xxx

xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other
assistance wherein you were rendering professional service to the deceased Matilde Vda de
Ramonal?
A. I can not remember if I have assisted her in other matters but if there are documents to show
that I have assisted then I can recall.28
xxx

xxx

xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal
Waga and tell the court whether you are familiar with the handwriting contained in that document
marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the
court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose
signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose signature is this?
A. The same is true with the signature in item no. 4. It seems that they are similar.29
xxx

xxx

xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal
Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely
supposing that it seems to be her signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.30
From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the
requirement of three witnesses in case of contested holographic will, citing the decision in Azaola
vs. Singson,31ruling that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the
execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other hand, also one must not lose
sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a
will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator,
which is why if the holographic will is contested, that law requires three witnesses to declare that the will
was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of the respondents, who
kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the handwriting of the deceased with
other documents signed and executed by her during her lifetime. The only chance at comparison was during
the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the
documents which contained the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are different when compared with
other documents written by the testator. The signature of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several
documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated
June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes,
evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be
certain that ruling holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the
court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the
probate of the holographic will of the deceased Matilde Seo vda. de Ramonal.1wphi1.nt
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.

Footnotes

In CA-G.R. CV No. 31365, promulgated on October 9, 1995, Justice Pedro A. Ramirez, ponente,
Justices Angelina Sandoval Gutierrez and Conrado M. Vasquez, Jr., concurring, CA Rollo, pp. 8392.
2

Decision, Court of Appeals Records, pp. 83-93.

Original Records, Petition, pp. 1-7.

Ibid., p. 4.

Original Record, Opposition, pp. 13-17.

Demurrer to Evidence, pp. 140-155, October 13, 1990.

Original Records, Order, p. 192.

Ibid., Notice of Appeal (November 29, 1990), p. 194.

Court of Appeals Rollo, Decision, pp. 83-92.

10

Ibid.

11

Pioneer Texturing Corporation vs. National Labor Relations Commission, 280 SCRA 806
[1997]; see also Director of Lands vs. Court of Appeals, 276 SCRA 276 [1997]; Cecilleville Realty
and Service Corporation vs. Court of Appeals, 278 SCRA 819 [1997]; Barabada vs. Gustilo, 165
SCRA 757 [1988].
12

TSN, September 5, 1990, p. 23.

13

Ibid., p. 24.

14

TSN, September 5, 1990, pp. 24-26.

15

Ibid., pp. 28-29.

16

TSN, September 5, 1990, pp. 28-29.

17

TSN, September 5, 1990, p. 48.

18

TSN, September 5, 1990, p. 49.

19

TSN, p. 62.

20

TSN, pp. 58-59.

21

TSN, pp. 64-66.

22

TSN, September 27, 1990, pp. 145-147.

23

TSN, p. 148.

24

TSN, September 6, 1990, p. 74.

25

Ibid.

26

TSN, September 6, 1990, pp. 76-77.

27

Ibid.

28

TSN, September 6, 1990, pp. 79-80.

29

TSN, pp. 80-82.

30

TSN, September 6, 1990, pp. 83-84.

31

Supra.

32

236 SCRA 489 [1994].

33

Original Record, Exhibit "S", p. 101.

34

Ibid., Exhibit "T", p. 103.

35

Ibid., Exhibit "V", p. 105.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO,respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals
(now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10,
1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28,
1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him
at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of
Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and
of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal
by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and
only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain
Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact,
on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were
married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely,
his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion
thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina
Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare
and admit to be legally and properly entitled to inherit from me; that while I have been
estranged from my above-named wife for so many years, I cannot deny that I was legally
married to her or that we have been separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that while Sofia J. Nepomuceno
has with my full knowledge and consent, did comport and represent myself as her own
husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for
the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging
inter alia that the execution of the Will was procured by undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner
having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters
testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16, 1974,
the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its
intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying
the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of
the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid
except the devise in favor of the appellant which is declared null and void. The properties
so devised are instead passed on in intestacy to the appellant in equal shares, without
pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error"
praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed
to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in
equal shares, without pronouncement as to costs." The motion was granted by the respondent court on
August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent
court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it
went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon
and decided in the probate proceedings but in some other proceedings because the only purpose of the
probate of a Will is to establish conclusively as against everyone that a Will was executed with the
formalities required by law and that the testator has the mental capacity to execute the same. The petitioner
further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines
were applicable, the declaration of its nullity could only be made by the proper court in a separate action
brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary
provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself expressly
admits indubitably on its face the meretricious relationship between the testator and the petitioner and the
fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil
status of the testator, which led private respondents to present contrary evidence, merits the application of

the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon.
Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission
of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went
on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and
void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and
resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last Will
and testament, irrespective of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is limited to the
extrinsic validity thereof. The testators testamentary capacity and the compliance with the
formal requisites or solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of
the will or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first decides
the execution of the document and the testamentary capacity of the testator; the second
relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of
a will. (Sec. 625). The judgment in such proceedings determines and can determine
nothing more. In them the court has no power to pass upon the validity of any provisions
made in the will. It can not decide, for example, that a certain legacy is void and another
one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal
heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may
appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity
of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452)
passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization) the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity had
been established. The probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April
30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are
agreed that the Will of Martin Jugo was executed with all the formalities required by law and that the testator
had the mental capacity to execute his Will. The petitioner states that she completely agrees with the
respondent court when in resolving the question of whether or not the probate court correctly denied the
probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision
in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the record, in the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the intrinsic validity
or nullity of the will. Result, waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on
the issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of
Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper court in a
separate action for that purpose simply because, in the probate of a will, the court does not ordinarily look
into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the time
of the donation;

(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants, by reason of
his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to
testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's
death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom
he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar
Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the
petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He
stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the
eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned
previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed
his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital
relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage
before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was
48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally
married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private respondents:
First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance
of the true civil status of the testator, which led private respondents to present contrary
evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy given in the
will to petitioner by the deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man
and wife, as already married, was an important and specific issue brought by the parties
before the trial court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who
opted to present evidence on her alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a decisive issue right
at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the question.
When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty
of adultery or concubinage', it was a finding that petitioner was not the innocent woman
she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in
Tarlac where neither she nor the testator ever resided. If there was nothing to hide from,
why the concealment' ? Of course, it maybe argued that the marriage of the deceased with
private respondent Rufina Gomez was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in the family way at that time and it would
seem that the parents of Martin Jugo were not in favor of the marriage so much so that an
action in court was brought concerning the marriage. (Testimony of Sebastian Jugo, TSN
of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they were still both
single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952.
There was a space of about 30 years in between. During those 30 years, could it be
believed that she did not even wonder why Martin Jugo did not marry her nor contact her
anymore after November, 1923 - facts that should impel her to ask her groom before she
married him in secrecy, especially so when she was already about 50 years old at the time
of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive
demonstration that she new that the man she had openly lived for 22 years as man and
wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it
possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator,
is it possible that she would not have known that the mother of private respondent Oscar
Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of
the parents of Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the
least, inherently improbable, for they are against the experience in common life and the
ordinary instincts and promptings of human nature that a woman would not bother at all to
ask the man she was going to marry whether or not he was already married to another,
knowing that her groom had children. It would be a story that would strain human credulity
to the limit if petitioner did not know that Martin Jugo was already a married man in view of
the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led
petitioner to break off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot
give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy
because the testator admitted he was disposing the properties to a person with whom he had been living
in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants,
legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid,
and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all
surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will
allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner
prayed that said will be admitted to probate and that letters of administration with the will annexed be issued
to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of
the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia,
is that by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors who
are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors
moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce
create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will.
The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the
will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites
or solemnities by law prescribed, are the questions solely to be presented, and to be acted upon, by the
court. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will, the legality of any devise or legacy therein. 1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will
should be allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this
comes only after the court has declared that the will has been duly authenticated. 2 But petitioner and

oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically
a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate
or if the court rejects the will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. 3 After all, there exists a justiciable controversy
crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a
complete nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount
of property, do hereby give, devise, and bequeath all of the property which I may have when I die to my
beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have
signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code
of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time
of the execution of the will or born after the death of the testator, shall void the institution of heir;
but the legacies and betterments4 shall be valid, in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this
point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun
nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda expresamente
ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a
legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador
a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea
completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us,
to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree
upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make void
or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden,
40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to
abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or
illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid
and Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la institucion de
heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854
of the Civil Code.9 The one-sentence will here institutes petitioner as the sole, universal heir nothing
more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en
parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara
la institucion de heredero en cuanto prejudique a la legitima del deseheredado Debe, pues,
entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que
le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno,
varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos los
bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se
anula, porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto
de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the
universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the
nullification of such institution of universal heir without any other testamentary disposition in the will
amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854
offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the
fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme,
correspondiente a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero,
no consiente interpretacion alguna favorable a la persona instituida en el sentido antes expuesto
aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no
significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por
lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte

la institucion, es obligado llamar a los herederos forzosos en todo caso, como habria que llamar a
los de otra clase, cuando el testador no hubiese distribudo todos sus bienes en legados, siendo
tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es,
segun tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad
de quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido
para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho
positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon
para modificar la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno
del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion,
desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises
and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit consideration
only when they are so expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will void because of preterition would give the heir so
instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component parts of Article 814, now 854,
states that preterition annuls the institution of the heir "totalmente por la pretericion"; but added (in reference
to legacies and bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a la
institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal
heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar".
This argument fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory
heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own words: "La privacion
expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is presumed to be "involuntaria". 19 Express as
disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names
altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced
heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution of heir".
This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance
shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinherited", which
last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity
is limited to that portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's
expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the
one hand and legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes,
but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced
to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case heretofore
cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the children by the
second marriage should be treated as legado and mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of Articles
814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into the
concept of legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be absolutely
meaningless and will never have any application at all. And the remaining provisions contained in
said article concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817. Thus, instead of construing, we would be
destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution
of heirs from legacies and betterments, and a general from a special provision. With reference to
article 814, which is the only provision material to the disposition of this case, it must be observed
that the institution of heirs is therein dealt with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only because they are distinctly and separately
treated in said article but because they are in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined. Legacy refers to specific property bequeathed
by a particular or special title. ... But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil
Code in turn merely nullifies "the institution of heir". Considering, however, that the will before us solely
provides for the institution of petitioner as universal heir, and nothing more, the result is the same. The
entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No
costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ.,
concur.
Footnotes
1Castaeda

vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc., et al., 5 Phil. 436, 440-441;
Limjuco vs. Ganara, 11 Phil. 393, 394-395; Montaano vs. Suesa, 14 Phil. 676, 679; Riera vs.
Palmorali, et al., 40 Phil. 105, 116; In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs. Palacios,
58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc., L-18753, March 26, 1965.
2Section

13, Rule 76 of the Rules of Court.

3Section

2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil. 517, 522.

4Betterments
5VI

are eliminated in the present Civil Code. II Padilla, Civil Code Annotated, p. 1077.

Manresa, Commentarios al Codigo Civil Espaol, 7th Edition, (1951), p. 424.

6Words
7Id.,

& Phrases, Vol. 3A, Permanent Ed., p. 3.

p. 4.

8Black's

Law Dictionary, 4th ed., p. 117.

9Manresa,

id., p. 426.

10Manresa,

id., pp. 431-432.

11VI

Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen 2.o, p. 1140.

12VI

Sanchez Roman, id., p. 1138. This is also cited in the Neri case, 74 Phil. 192-193.
Justice J.B.L. Reyes and Judge R.C. Puno, in their work entitled "An Outline of Philippine
Civil Law", 1956 ed., Vol. III, p. 8; citing Gil vs. Murciano, L-3362, March 1, 1951, likewise
opined that "the right to make a will is statutory, not a natural right, and must be subordinate
to law and public policy".

13Sanchez

Roman, id., p. 1141.

14Manresa,

id., p. 434.

15Petitioner's
16Neri,

brief, p. 15.

et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.

17Justice

J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

18Manresa,

id., p. 424. Justice Reyes and Judge Puno, id., 107, speaking of the requisites of a valid
disinheritance, confirm the theory that disinheritance "must be express (not implied) (Art. 918 ;
otherwise there is preterition".
19Sanchez
20Arts.
21III

Roman, id., p. 1131.

915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-752.

Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

22Now

one-half, Articles 888 and 889, Civil Code.

23Manresa,

id., p. 430.

24Petitioner's
25Neri,

brief, p. 13.

et al. vs. Akutin, et al., 74 Phil. pp. 191-192.

Arts. 817 and 851, Civil Code of Spain of 1889, referred to in the opinion above, are now
Arts. 907 and 918 of the present Civil Code.