LEONILA BATULANON, G.R. No.
139857 intent and fraudulent design to defraud
Petitioner, vs. PEOPLE OF
THE PHILIPPINES,Respondent.
This petition assails the October 30, 1998
Decision[1] of the Court of Appeals in CA-G.R. CR No. 15221,
affirming with modification the April 15, 1993 Decision [2] of
the Regional Trial Court of General Santos City, Branch 22 in
Criminal Case Nos. 3453, 3625, 3626 and 3627, convicting
Leonila Batulanon of estafa through falsification of
commercial documents, and the July 29, 1999
Resolution[3] denying the motion for reconsideration.
Complainant Polomolok Credit Cooperative
Incorporated (PCCI) employed Batulanon as its
Cashier/Manager from May 1980 up to December 22,
1982. She was in charge of receiving deposits from and
releasing loans to the member of the cooperative.
During an audit conducted in December 1982,
certain irregularities concerning the release of loans were
discovered.[4]
Thereafter, four informations for estafa thru
falsification of commercial documents were filed against
Batulanon, to wit:
Criminal Case No. 3625
That on or about the 2nd day of
June, 1982 at Poblacion Municipality of
Polomolok, Province of South Cotabato,
Philippines, and within the jurisdiction of
the Honorable Court said accused being
then the manager-cashier of Polomolok
Credit Cooperative, Inc., (PCCI),
entrusted with the duty of managing the
aff[a]irs of the cooperative, receiving
payments to, and collections of, the
same, and paying out loans to
members, taking advantage of her
position and with intent to prejudice and
defraud the cooperative, did then and
there willfully, unlawfully and feloniously
falsify a commercial document, namely:
Cash/Check Voucher No. 30-A of PCCI
in the name of Erlinda Omadlao by then
and there making an entry therein that
the said Erlinda Omadlao was granted a
loan of P4,160, Philippine Currency, and
by signing on the appropriate line
thereon the signature of Erlinda
Omadlao showing that she received the
loan, thus making it appear that the said
Erlinda Omadlao was granted a loan
and received the amount of P4,160
when in truth and in fact the said person
was never granted a loan, never
received the same, and never signed
the cash/check voucher issued in her
name, and in furtherance of her criminal
PCCI said accused did then and there
release to herself the same and
received the loan of P4,160 and
thereafter misappropriate and convert to
her own use and benefit the said
amount, and despite demands, refused
and still refuses to restitute the same, to
the damage and prejudice of PCCI, in
the aforementioned amount of P4,160,
Philippine Currency.[5]
Criminal Case No. 3626
That on or about the 24 th day
of September, 1982 at Poblacion,
Municipality of Polomolok, Province of
South Cotabato, Philippines, and within
the jurisdiction of the Honorable Court,
said accused being then the manager-
cashier of Polomolok Credit
Cooperative, Inc. (PCCI), entrusted with
the duty of managing the affairs of the
cooperative, receiving payments to, and
collections of, the same, and paying out
loans to members taking advantage of
her position and with intent to prejudice
and defraud the cooperative, did then
and there willfully, unlawfully and
feloniously falsify a commercial
document, namely: Cash/Check
Voucher No. 237 A of PCCI in the name
of Gonafreda Oracion by then and there
making an entry therein that the said
Gonafreda Oracion was granted a loan
of P4,000.00 and by signals on the
appropriate line thereon the signature of
Gonafreda Oracion showing that she
received the loan, thus making it appear
that the said Gonafreda Oracion was
granted a loan, received the loan of
P4,000.00 when in truth and in fact said
person was never granted a loan, never
received the same, and never signed
the Cash/Check voucher issued in her
name, and in furtherance of her criminal
intent and fraudulent design to defraud
PCCI said accused did then and there
release to herself the same and
received the amount of P4,000.00 and
thereafter misappropriate and convert to
her own use and benefit the said
amount, and despite demands, refused
and still refuses to restitute the same, to
the damage and prejudice of PCCI, in
the aforementioned amount of P4,000,
Philippine Currency.
CONTRARY TO LAW.[6]
Criminal Case No. 3453
That on or about the 10 th day
of October 1982 at Poblacion,
Municipality of Polomolok, Province of
South Cotabato, Philippines, and within
the jurisdiction of the Honorable Court,
the said accused being then the
manager-cashier of Polomolok Credit
Cooperative, Inc., (PCCI), entrusted with
the duty of managing the affairs of the
cooperative, receiving payments to, and
collection of the same and paying out
loans to members, taking advantage of
her position and with intent to prejudice
and defraud the cooperative, did then
and there willfully, unlawfully and
feloniously falsify a commercial
document, namely: an Individual
Deposits and Loan Ledger of one Ferlyn
Arroyo with the PCCI by then and there
entering on the appropriate column of
the ledger the entry that the said Ferlyn
Arroyo had a fixed deposit of P1,000.00
with the PCCI and was granted a loan in
the amount of P3,500.00, thus making it
appear that the said person made a
fixed deposit on the aforesaid date with,
and was granted a loan by the PCCI
when in truth and in fact Ferlyn Arroyo
never made such a deposit and was
never granted loan and after the
document was so falsified in the manner
set forth, said accused did then and
there again falsify the Cash/Check
Voucher of the PCCI in the name of
Ferlyn Arroyo by signing therein the
signature of Ferlyn Arroyo, thus making
it appear that the said Ferlyn Arroyo
received the loan of P3,500, Philippine
Currency, when in truth and in fact said
Ferlyn Arroyo never received the loan,
and in furtherance of her criminal intent
and fraudulent design to defraud PCCI
said accused did then and there release
to herself the same, and received the
amount of P3,500, and thereafter, did
then and there, wilfully, unlawfully and
feloniously misappropriate and convert
to her own personal use and benefit the
said amount, and despite demands,
refused and still refuses to restitute the
same, to the damage and prejudice of
the PCCI in the aforementioned amount
of P3,500, Philippine Currency.
CONTRARY TO LAW.[7]
Criminal Case No. 3627
That on or about the 7th day of
December, 1982 at Poblacion,
Municipality of Polomolok, Province of
South Cotabato, Philippines, and within
the jurisdiction of the Honorable Court,
the said accused being then the
manager-cashier of Polomolok Credit
Cooperative, Inc., (PCCI) entrusted with
the duty of managing the affairs of the
cooperative, receiving payments to, and
collection of, the same and paying out
loans to members, taking advantage of
her position and with intent to prejudice
and defraud the cooperative, did then
and there willfully, unlawfully and
feloniously falsify a commercial
document, namely: an Individual
Deposits and Loan Ledger of one
Dennis Batulanon with the PCCI by then
and there entering on the appropriate
column of the ledger the entry that the
said Dennis Batulanon had a fixed
deposit of P2,000.00 with the PCCI and
was granted a loan in the amount of
P5,000.00 thus making it appear that
the said person made fixed deposit on
the aforesaid date with, and was
granted a loan by the PCCI when in
truth and in fact Dennis Batulanon never
made such a deposit and was never
granted loan and offer the document
was so falsified in the manner set forth,
said accused did then and there again
falsify the Cash/Check Voucher No. 374
A of PCCI in the name of Dennis
Batulanon by signing therein the
signature of Dennis Batulanon, thus
making it appear that the said Dennis
Batulanon received the loan of
P5,000.00 when in truth and in fact said
Dennis Batulanon never received the
loan and in furtherance of her criminal
intent and fraudulent design to defraud
PCCI said accused did then and there
release to herself the same and receive
the loan of P5,000, and thereafter, did
then and there willfully, unlawfully and
feloniously misappropriate and convert
to her own personal use and benefit the
said amount, and [despite] demands,
refused and still refuses to restitute the
same to the damage and prejudice of
the PCCI in the aforementioned amount
of P5,000, Philippine Currency.
CONTRARY TO LAW.[8]
 The cases were raffled to Branch 22 of
the Regional Trial Court of General Santos City and
docketed as Criminal Case Nos. 3453, 3625, 3626 and
3627.
Batulanon pleaded not guilty to the charges,
afterwhich a joint trial on the merits ensued.
The prosecution presented Maria Theresa
Medallo, Benedicto Gopio, Jr., and Bonifacio Jayoma as
witnesses.
Medallo, the posting clerk whose job was to assist
Batulanon in the preparation of cash vouchers [9] testified that
on certain dates in 1982, Batulanon released four Cash
Vouchers representing varying amounts to four different
individuals as follows: On June 2, 1982, Cash Voucher No.
30A[10] for P4,160.00 was released to Erlinda Omadlao; on
September 24, 1982, Cash Voucher No. 237A[11] for
P4,000.00 was released to Gonafreda[12] Oracion; P3, 500.00
thru Cash Voucher No. 276A[13] was released to Ferlyn
Arroyo on October 16, 1982 and on December 7, 1982,
P5,000.00 was released to Dennis Batulanon thru Cash
Voucher No. 374A.[14]
Medallo testified that Omadlao, Oracion, and
Dennis Batulanon were not eligible to apply for loan because
they were not bona fide members of the cooperative.
[15]
Ferlyn Arroyo on the other hand, was a member of the
cooperative but there was no proof that she applied for a
loan with PCCI in 1982. She subsequently withdrew her
membership in 1983.[16] Medallo stated that pursuant to the
cooperatives by-laws, only bona fide members who must
have a fixed deposit are eligible for loans.[17]
Medallo categorically stated that she saw
Batulanon sign the names of Oracion and Arroyo in their
respective cash vouchers and made it appear in the records
that they were payees and recipients of the amount stated
therein.[18] As to the signature of Omadlao in Cash Voucher
No. 30A, she declared that the same was actually the
handwriting of appellant.[19]
Gopio, Jr. was a member of PCCI since 1975 and
a member of its board of directors since 1979. He
corroborated Medallos testimony that Omadlao, Arroyo,
Oracion and Dennis Batulanon are not members of PCCI.
He stated that Oracion is Batulanons sister-in-law while
Dennis Batulanon is her son who was only 3 years old in
1982. He averred that membership in the cooperative is not
open to minors.[20]
Jayoma was the Vice-Chairman of the PCCI Board
of Directors in 1980 before becoming its Chairman in 1982
until 1983. He testified that the loans made to Oracion,
Omadlao, Arroyo and Dennis Batulanon did not pass through
the cooperatives Credit Committee and PCCIs Board of
Directors for screening purposes. He claimed that Oracions
signature on Cash Voucher No. 237A is Batulanons
handwriting.[21] Jayoma also testified that among the four
loans taken, only that in Arroyos name was settled.[22]
The defense presented two witnesses, namely,
Maria Theresa Medallo who was presented as a hostile
witness and Batulanon.
Medallo was subpoenaed by the trial court on
behalf of the defense and was asked to bring with her the
PCCI General Journal for the year 1982. After certifying that
the said document reflected all the financial transactions of
the cooperative for that year, she was asked to identify the
entries in the Journal with respect to the vouchers in
question. Medallo was able to identify only Cash Voucher
No. 237A in the name of Gonafreda Oracion. She failed to
identify the other vouchers because the Journal had missing
pages and she was not the one who prepared the entries.[23]
Batulanon denied all the charges against her. She
claimed that she did not sign the vouchers in the names of
Omadlao, Oracion and Arroyo; that the same were signed by
the loan applicants in her presence at the PCCI office after
she personally released the money to them; [24] that the three
were members of the cooperative as shown by their
individual deposits and the ledger; that the board of directors
passed a resolution in August 1982 authorizing her to certify
to the correctness of the entries in the vouchers; that it has
become an accepted practice in the cooperative for her to
release loans and dispense with the approval of Gopio Jr., in
case of his absence;[25] that she signed the loan application
and voucher of her son Dennis Batulanon because he was a
minor but she clarified that she asked Gopio, Jr., to add his
signature on the documents to avoid suspicion of irregularity;
[26]
that contrary to the testimony of Gopio, Jr., minors are
eligible for membership in the cooperative provided they are
children of regular members.
Batulanon admitted that she took out a loan in her
sons name because she is no longer qualified for another
loan as she still has to pay off an existing loan; that she had
started paying off her sons loan but the cooperative refused
to accept her payments after the cases were filed in court.
[27]
She also declared that one automatically becomes a
member when he deposits money with the cooperative.
[28]
When she was Cashier/Manager of PCCI from 1980 to
1982, the cooperative did not have by-laws yet.[29]
On rebuttal, Jayoma belied that PCCI had no by-
laws from 1980-1982, because the cooperative had been
registered since 1967.[30]
On April 15, 1993, the trial court rendered a
Decision convicting Batulanon as follows:
WHEREFORE, premises
considered, finding the accused Leonila
Batulanon guilty beyond reasonable
doubt in all the above-entitled case, she
is sentenced in each of the four cases to
4 months of ARRESTO MAYOR to 1
year and 2 months of PRISION
CORRECTIONAL, to indemnify the
PCCI in the total sum of P16,660.00
 with legal interest from the institution of
the complaints until fully paid, plus
costs.
SO ORDERED.[31]
The Court of Appeals affirmed with modification the decision
of the trial court, thus:
WHEREFORE, the decision
appealed from is MODIFIED. Appellant
LEONILA BATULANON is found guilty
beyond reasonable doubt of Falsification
of Private Documents under Par. 2,
Article 172 of the Revised Penal Code;
and is hereby sentenced to suffer the
indeterminate penalty of six (6) months
of arresto mayor maximum, AS
MINIMUM, to four (4) years and two (2)
months of prision correccional medium,
AS MAXIMUM; to pay a fine of five
thousand (P5,000.00) pesos; and to
indemnify the Polomolok Cooperative
Credit , Inc. the sum of thirteen
thousand one hundred sixty
(P13,160.00), plus legal interests from
the filing of the complaints until fully
paid, plus costs.
SO ORDERED.[32]
The motion for reconsideration was denied, hence this
petition.
Batulanon argues that in any falsification case, the best
witness is the person whose signature was allegedly forged,
thus the prosecution should have presented Erlinda
Omadlao, Gonafreda Oracion and Ferlyn Arroyo instead of
relying on the testimony of an unreliable and biased witness
such as Medallo.[33] She avers that the crime of falsification
of private document requires as an element prejudice to a
third person. She insists that PCCI has not been prejudiced
by these loan transactions because these loans are
accounts receivable by the cooperative.[34]
The petition lacks merit.
Although the offense charged in the information is
estafa through falsification of commercial document,
appellant could be convicted of falsification of private
document under the well-settled rule that it is the allegations
in the information that determines the nature of the offense
and not the technical name given in the preamble of the
information. In Andaya v. People,[35] we held:
From a legal point of view,
and in a very real sense, it is of no
concern to the accused what is the
technical name of the crime of which he
stands charged. It in no way aids him in
a defense on the merits. x x x That to
which his attention should be directed,
and in which he, above all things else,
should be most interested, are the facts
alleged. The real question is not did he
commit a crime given in the law some
technical and specific name, but did he
perform the acts alleged in the body of
the information in the manner therein set
forth. x x x The real and important
question to him is, Did you perform the
acts alleged in the manner alleged? not,
Did you commit a crime named murder?
If he performed the acts alleged, in the
manner stated, the law determines what
the name of the crime is and fixes the
penalty therefor. x x x If the accused
performed the acts alleged in the
manner alleged, then he ought to be
punished and punished adequately,
whatever may be the name of the crime
which those acts constitute.
The elements of falsification of private document
under Article 172, paragraph 2[36] of the Revised Penal Code
are: (1) that the offender committed any of the acts of
falsification, except those in paragraph 7, Article 171; (2) that
the falsification was committed in any private document; and
(3) that the falsification caused damage to a third party or at
least the falsification was committed with intent to cause
such damage.[37]
In Criminal Case Nos. 3625, 3626, and 3453, Batulanons
act[38] of falsification falls under paragraph 2 of Article
171, i.e., causing it to appear that persons have participated
in any act or proceeding when they did not in fact so
participate. This is because by signing the name of
Omadlao, Oracion, and Arroyo in Cash Voucher Nos. 30A,
237A, and 267A, respectively, as payee of the amounts
appearing in the corresponding cash vouchers, Batulanon
made it appear that they obtained a loan and received its
proceeds when they did not in fact secure said loan nor
receive the amounts reflected in the cash vouchers.
The prosecution established that Batulanon
caused the preparation of the Cash Vouchers in the name of
Omadlao and Oracion knowing that they are not PCCI
members and not qualified for a loan from the
cooperative. In the case of Arroyo, Batulanon was aware that
while the former is a member, she did not apply for a loan
with the cooperative.
Medallo categorically declared that she saw
Batulanon forge the signatures of Oracion and Arroyo in the
vouchers and made it appear that the amounts stated
therein were actually received by these persons. As to the
signature of Arroyo, Medallos credible testimony and her
familiarity with the handwriting of Batulanon proved that it
was indeed the latter who signed the name of
Arroyo. Contrary to Batulanons contention, the prosecution
is not duty-bound to present the persons whose signatures
were forged as Medallos eyewitness account of the incident
was sufficient. Moreover, under Section 22, Rule 132 of the
Rules of Court, the handwriting of a person may be proved
by any witness who believes it to be the handwriting of such
person because he has seen the person write, or has seen
writing purporting to be his upon which the witness has acted
or been charged, and has thus acquired knowledge of the
handwriting of such person.
Her insistence that Medallo is a biased witness is
without basis. There is no evidence showing that Medallo
was prompted by any ill motive.
The claim that Batulanons letter to the cooperative
asking for a compromise was not an admission of guilt is
untenable. Section 27, Rule 130 of the Rules of Court
provides that in criminal cases, except those involving quasi-
offenses or criminal negligence or those allowed by law to be
compromised, an offer of compromise by the accused may
be received in evidence as an implied admission of guilt.
There is no merit in Batulanons assertion that
PCCI has not been prejudiced because the loan transactions
are reflected in its books as accounts receivable. It has been
established that PCCI only grants loans to its bona fide
members with no subsisting loan. These alleged borrowers
are not members of PCCI and neither are they eligible for a
loan. Of the four accounts, only that in Ferlyn Arroyos name
was settled because her mother, Erlinda, agreed to settle the
loan to avoid legal prosecution with the understanding
however, that she will be reimbursed once the money is
collected from Batulanon.[39]
The Court of Appeals[40] correctly ruled that the
subject vouchers are private documents and not commercial
documents because they are not documents used by
merchants or businessmen to promote or facilitate trade or
credit transactions[41] nor are they defined and regulated by
the Code of Commerce or other commercial law. [42]Rather,
they are private documents, which have been defined as
deeds or instruments executed by a private person without
the intervention of a public notary or of other person legally
authorized, by which some disposition or agreement is
proved, evidenced or set forth. [43]
In all criminal prosecutions, the burden of proof is
on the prosecution to establish the guilt of the accused
beyond reasonable doubt. It has the duty to prove each and
every element of the crime charged in the information to
warrant a finding of guilt for the said crime or for any other
crime necessarily included therein.[44] The prosecution in this
case was able to discharge its burden completely.
As there is no complex crime of estafa through
falsification of private document, [45] it is important to ascertain
whether the offender is to be charged with falsification of a
private document or with estafa. If the falsification of a
private document is committed as a means to commit estafa,
the proper crime to be charged is falsification. If the estafa
can be committed without the necessity of falsifying a
document, the proper crime to be charged is estafa. Thus,
in People v. Reyes,[46] the accused made it appear in the
time book of the Calamba Sugar Estate that a laborer,
Ciriaco Sario, worked 21 days during the month of July,
1929, when in reality he had worked only 11 days, and then
charged the offended party, the Calamba Sugar Estate, the
wages of the laborer for 21 days. The accused
misappropriated the wages during which the laborer did not
work for which he was convicted of falsification of private
document.
In U.S. v. Infante,[47] the accused changed the
description of the pawned article on the face of the pawn
ticket and made it appear that the article is of greatly
superior value, and thereafter pawned the falsified ticket in
another pawnshop for an amount largely in excess of the
true value of the article pawned. He was found guilty of
falsification of a private document. In U.S. v. Chan Tiao,
[48]
the accused presented a document of guaranty
purportedly signed by Ortigas Hermanos for the payment of
P2,055.00 as the value of 150 sacks of sugar, and by means
of said falsified documents, succeeded in obtaining the
sacks of sugar, was held guilty of falsification of a private
document.
In view of the foregoing, we find that the Court of
Appeals correctly held Batulanon guilty beyond reasonable
doubt of Falsification of Private Documents in Criminal Case
Nos. 3625, 3626 and 3453.
Article 172 punishes the crime of Falsification of a
Private Document with the penalty of prision correccional in
its medium and maximum periods with a duration of two (2)
years, four (4) months and one (1) day to six (6)
years. There being no aggravating or mitigating
circumstances, the penalty should be imposed in its medium
period, which is three (3) years, six (6) months and twenty-
one (21) days to four (4) years, nine (9) months and ten (10)
days. Taking into consideration the Indeterminate Sentence
Law, Batulanon is entitled to an indeterminate penalty the
minimum of which must be within the range of arresto
mayor in its maximum period to prision correccional in its
minimum period, or four (4) months and one (1) day to two
(2) years and four (4) months.[49] Thus, in Criminal Case Nos.
3625, 3626 and 3453, the Court of Appeals correctly
imposed the penalty of six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision
correccional, as maximum, which is within the range of the
allowed imposable penalty.
Since Batulanons conviction was for 3 counts of
falsification of private documents, she shall suffer the
aforementioned penalties for each count of the offense
charged. She is also ordered to indemnify PCCI the amount
of P11,660.00 representing the aggregate amount of the 3
loans without deducting the amount of P3,500.00 paid by
Ferlyn Arroyos mother as the same was settled with the
understanding that PCCI will reimburse the former once the
money is recovered. The amount shall earn interest at the
rate of 6% per annum from the filing of the complaints
on November 28, 1994 until the finality of this
judgment. From the time the decision becomes final and
executory, the interest rate shall be 12% per annum until its
satisfaction.
However, in Criminal Case No. 3627, the crime committed
by Batulanon is estafa and not falsification. Under Article 171
of the Revised Penal Code, the acts that may constitute
falsification are the following:
1. Counterfeiting or imitating
any handwriting, signature, or rubric;
2. Causing it to appear that
persons have participated in any act or
proceeding when they did not in fact so
participate;
3. Attributing to persons who
have participated in an act or
proceeding statements other than those
in fact made by them;
4. Making untruthful
statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or
intercalation in a genuine document
which changes its meaning;
7. Issuing in an authenticated
form a document purporting to be a
copy of an original document when no
such original exists, or including in such
copy a statement contrary to, or different
from, that of the genuine original; or;
8. Intercalating any instrument
or note relative to the issuance thereof
in a protocol, registry, or official book.
In Criminal Case No. 3627, the trial court convicted petitioner
Batulanon for falsifying Dennis Batulanons signature in the
cash voucher based on the Information charging her of
signing the name of her 3 year old son, Dennis. The records,
however, reveal that in Cash Voucher No. 374A, petitioner
Batulanon did not falsify the signature of Dennis. What she
did was to sign: by: lbatulanon to indicate that she received
the proceeds of the loan in behalf of Dennis. Said act does
not fall under any of the modes of falsification under Article
171 because there in nothing untruthful about the fact that
she used the name of Dennis and that as representative of
the latter, obtained the proceeds of the loan from PCCI. The
essence of falsification is the act of making untruthful or false
statements, which is not attendant in this case. As to
whether, such representation involves fraud which caused
damage to PCCI is a different matter which will make her
liable for estafa, but not for falsification. Hence, it was an
error for the courts below to hold that petitioner Batulanon is
also guilty of falsification of private document with respect to
Criminal Case No. 3627 involving the cash voucher of
Dennis.[50]
The elements of estafa through conversion or
misappropriation under Art. 315 (1) (b) of the Revised Penal
Code are:
(1) that money, goods or other
personal property is received by the
offender in trust, or on commission, or
for administration, or under any other
obligation involving the duty to make
delivery of, or to return, the same;
(2) that there be
misappropriation or conversion of such
money or property by the offender or
denial on his part of such receipt;
(3) that such misappropriation
or conversion or denial is to the
prejudice of another;
(4) that there is a demand
made by the offended party on the
offender. (Note: The 4th element is not
necessary when there is evidence of
misappropriation of the goods by the
defendant)[51]
Thus in the case of U.S. v. Sevilla,[52] the Court convicted the
appellant of estafa by misappropriation. The latter, a
treasurer of the Manila Rail Road Company, took the sum of
P8,330.00 out of the funds of the company and used it for
personal purposes. He replaced said cash with his personal
check of the same amount drawn on the Philippine National
Bank (PNB), with instruction to his cashier not to deposit the
same in the current account of the Manila Rail Road
Company until the end of the month. When an audit was
conducted, the check of appellant was discovered to have
been carried in the accounts as part of the cash on hand. An
inquiry with the PNB disclosed that he had only P125.66 in
his account, although in the afternoon of the same day, he
deposited in his account with the PNB sufficient sum to cover
the check. In handing down a judgment of conviction, the
Court explained that:
Fraudulent intent in
committing the conversion or diversion
is very evidently not a necessary
element of the form of estafa here
discussed; the breach of confidence
involved in the conversion or diversion
of trust funds takes the place of
fraudulent intent and is in itself sufficient.
The reason for this is obvious: Grave as
the offense is, comparatively few men
misappropriate trust funds with the
intention of defrauding the owner; in
most cases the offender hopes to be
able to restore the funds before the
defalcation is discovered. x x x
Applying the legal principles
here stated to the facts of the case, we
find all of the necessary elements of
estafa x x x. That the money for which
the appellant's checks were substituted
was received by him for safe-keeping or
administration, or both, can hardly be
disputed. He was the responsible
financial officer of the corporation and as
such had immediate control of the
current funds for the purposes of safe-
keeping and was charged with the
custody of the same. That he, in the
exercise of such control and custody,
was aided by subordinates cannot alter
the case nor can the fact that one of the
subordinates, the cashier, was a bonded
employee who, if he had acted on his
own responsibility, might also have
misappropriated the same funds and
thus have become guilty of estafa.
Neither can there be any
doubt that, in taking money for his
personal use, from the funds entrusted
to him for safekeeping and substituting
his personal checks therefor with
instructions that the checks were to be
retained by the cashier for a certain
period, the appellant misappropriated
and diverted the funds for that period.
The checks did not constitute cash and
as long as they were retained by the
appellant or remained under his
personal control they were of no value
to the corporation; he might as well have
kept them in his pocket as to deliver
them to his subordinate with instructions
to retain them.
xxxx
But it is argued in the present
case that it was not the intention of the
accused to permanently misappropriate
the funds to himself. As we have already
stated, such intention rarely exists in
cases of this nature and, as we have
seen, it is not a necessary element of
the crime. Though authorities have been
cited who, at first sight, appear to hold
that misappropriation of trust funds for
short periods does not always amount to
estafa, we are not disposed to extend
this interpretation of the law to cases
where officers of corporations convert
corporate funds to their own use,
especially where, as in this case, the
corporation is of a quasi-public
character. The statute is clear and
makes no distinction between
permanent misappropriations and
temporary ones. We can see no reason
in the present case why it should not be
applied in its literal sense.
The third element of the crime
with which the appellant is charged is
injury to another. The appellant's
counsel argues that the only injury in
this case is the loss of interest suffered
by the Railroad Company during the
period the funds were withheld by the
appellant. It is, however, well settled by
former adjudications of this court that
the disturbance in property rights
caused by the misappropriation, though
only temporary, is in itself sufficient to
constitute injury within the meaning of
paragraph 5, supra. (U.S. vs.
Goyenechea, 8 Phil., 117 U.S. vs.
Malong, 36 Phil., 821.)[53]
In the instant case, there is no doubt that as
Cashier/Manager, Batulanon holds the money for
administration and in trust for PCCI. Knowing that she is no
longer qualified to obtain a loan, she fraudulently used the
name of her son who is likewise disqualified to secure a loan
from PCCI. Her misappropriation of the amount she obtained
from the loan is also not disputed as she even admitted
receiving the same for personal use. Although the amount
received by Batulanon is reflected in the records as part of
the receivables of PCCI, damage was still caused to the
latter because the sum misappropriated by her could have
been loaned by PCCI to qualified members, or used in other
productive undertakings. At any rate, the disturbance in
property rights caused by Batulaonos misappropriation is in
itself sufficient to constitute injury within the meaning of
Article 315.
Considering that the amount misappropriated by Batulanon
was P5,000.00, the applicable provision is paragraph (3) of
Article 315 of the Revised Penal Code, which imposes the
penalty of arresto mayor in its maximum period to prision
correccional in its minimum period, where the amount
defrauded is over P200.00 but does not exceed
P6,000.00.There being no modifying circumstances, the
penalty shall be imposed in its medium period. With the
application of the Indeterminate Sentence Law, Batulaon is
entitled to an indeterminate penalty of three (3) months
of arresto mayor, as minimum, to one (1) year and eight (8)
months of prision correccional, as maximum.
WHEREFORE, the Decision appealed from
is AFFIRMED with the following MODIFICATIONS:
(1) In Criminal Case Nos. 3625, 3626 and 3453,
Leonila Batulanon is found GUILTY of three counts of
falsification of private documents and is sentenced to suffer
the penalty of six (6) months of arresto mayor, as minimum,
to four (4) years and two (2) months of prision correccional,
as maximum, for each count, and to indemnify complainant
Polomolok Credit Cooperative Incorporated the amount of
P11,660.00 with interest at the rate of 6% per annum from
November 28, 1994 until finality of this judgment. The
interest rate of 12% per annum shall be imposed from finality
of this judgment until its satisfaction; and
(2) In Criminal Case No. 3627, Leonila Batulanon
is found GUILTY of estafa and is sentenced to suffer the
penalty of three (3) months of arresto mayor, as minimum, to
one (1) year and eight (8) months of prision correccional, as
maximum. She is likewise ordered to indemnify Polomolok
Credit Cooperative Incorporated the sum of P5,000.00 with
interest at the rate of 6% per annum from November 28,
1994 until finality of this judgment. The interest rate of 12%
per annum shall be imposed from finality of this judgment
until its satisfaction.
SO ORDERED.
------------------------------------------------------------------------
GREGORIO GATCHALIAN, deceased. PEDRO REYES
GARCIA, Petitioner-Appellant, v. FELIPE GATCHALIAN,
AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO
G. TUBOG, VIRGINIA G. TALANAY and ANGELES G.
TALANAY, Oppositors-Appellees.
1. CIVIL LAW; PROBATE OF WILLS; ACKNOWLEDGMENT
BY TESTATOR AND WITNESSES BEFORE A NOTARY
PUBLIC, REQUISITE OF; FAILURE TO OBSERVE;
EFFECT ON ALLOWANCE OF WILL. A will to be valid,
must be acknowledged before a notary public not only by the
testator but also by attesting witnesses (In re: Testate Estate
of Alberto, G.R. No. L-11948, April 29, 1959). As the
document under consideration does not comply with this
requirement, the same may not be probated.
DECISION
This is an appeal taken by Pedro Reyes Garcia from the
decision of the Court of First Instance of Rizal in Special
Proceedings No. 2623 denying the allowance of the will of
the late Gregorio Gatchalian, on the ground that the attesting
witnesses did not acknowledge it before a notary public as
required by law.
On March 15, 1967, Gregorio Gatchalian, a widower of 71
years of age, died in the municipality of Pasig, Province of
Rizal, leaving no forced heirs. On April 2 of the same year,
appellant filed a petition with the above-named court for the
probate of said alleged will (Exhibit "C") wherein he was
instituted as sole heir. Felipe Gatchalian, Aurora G. Camins,
Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay
and Angeles C. Talanay, appellees herein, opposed the
petition on the ground, among others, that the will was
procured by fraud; that the deceased did not intend the
instrument signed by him to be as his will; and that the
deceased was physically and mentally incapable of making a
will at the time of the alleged execution of said will.
After due trial, the court rendered the appealed decision
finding the document Exhibit "C" to be the authentic last will
of the deceased but disallowing it for failure to comply with
the mandatory requirement of Article 806 of the New Civil
Code that the will must be acknowledged before a notary
public by the testator and the witnesses.
An examination of the document (Exhibit "C") shows that the
same was acknowledged before a notary public by the
testator but not by the instrumental witnesses.
Article 806 of the New Civil Code reads as
follows:jgc:chanrobles.com.ph
"Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the
office of the Clerk of Court."cralaw virtua1aw library
We have held heretofore that compliance with the
requirement contained in the above legal provision to the
effect that a will must be acknowledged before a notary
public by the testator and also by the witnesses is
indispensable for its validity (In re: Testate Estate of Alberto,
G.R. No. L-11948, April 29, 1959). As the document under
consideration does not comply with this requirement, it is
obvious that the same may not be probated.
WHEREFORE, the decision appealed from is affirmed, with
costs.
------------------------------------------------------------------------
AGAPITA N. CRUZ, Petitioner, vs. HON. JUDGE
GUILLERMO P. VILLASOR, Presiding Judge of Branch I,
Court of First Instance of Cebu, and MANUEL B.
LUGAY, Respondents.
Paul G. Gorrez for petitioner.
Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court First
Instance of Cebu allowing the probate of the last will a
testament of the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the said decease
opposed the allowance of the will (Exhibit "E"), alleging the
will was executed through fraud, deceit, misrepresentation
and undue influence; that the said instrument was execute
without the testator having been fully informed of the content
thereof, particularly as to what properties he was disposing
and that the supposed last will and testament was not
executed in accordance with law. Notwithstanding her
objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was
given due course.chanroblesvirtualawlibrarychanrobles
virtual law library
The only question presented for determination, on which the
decision of the case hinges, is whether the supposed last will
and testament of Valente Z. Cruz (Exhibit "E") was executed
in accordance with law, particularly Articles 805 and 806 of
the new Civil Code, the first requiring at least three credible
witnesses to attest and subscribe to the will, and the second
requiring the testator and the witnesses to acknowledge the
will before a notary
public.chanroblesvirtualawlibrarychanrobles virtual law
library
Of the three instrumental witnesses thereto, namely
Deogracias T. Jamaloas Jr., Dr. Francisco Paares and Atty.
Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was
supposed to have been acknowledged. Reduced to simpler
terms, the question was attested and subscribed by at least
three credible witnesses in the presence of the testator and
of each other, considering that the three attesting witnesses
must appear before the notary public to acknowledge the
same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will.
On the other hand, private respondent-appellee, Manuel B.
Lugay, who is the supposed executor of the will, following
the reasoning of the trial court, maintains that there is
substantial compliance with the legal requirement of having
at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with 57
American Jurisprudence, p. 227 which, insofar as pertinent,
reads as follows:
It is said that there are, practical reasons for upholding a will
as against the purely technical reason that one of the
witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather
than as attesting the execution of the instrument.
After weighing the merits of the conflicting claims of the
parties, We are inclined to sustain that of the appellant that
the last will and testament in question was not executed in
accordance with law. The notary public before whom the will
was acknowledged cannot be considered as the third
instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before
means to avow (Javellana v. Ledesma, 97 Phil. 258, 262;
Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic
Dictionary of the English Language, p. 72; Funk & Wagnalls
New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.)
Consequently, if the third witness were the notary public
himself, he would have to avow assent, or admit his having
signed the will in front of himself. This cannot be done
because he cannot split his personality into two so that one
will appear before the other to acknowledge his participation
in the making of the will. To permit such a situation to obtain
would be sanctioning a sheer
absurdity.chanroblesvirtualawlibrarychanrobles virtual law
library
Furthermore, the function of a notary public is, among
others, to guard against any illegal or immoral arrangement
Balinon v. De Leon, 50 0. G. 583.) That function would
defeated if the notary public were one of the attesting
instrumental witnesses. For them he would be interested
sustaining the validity of the will as it directly involves him
and the validity of his own act. It would place him in
inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be
thwarted.chanroblesvirtualawlibrarychanrobles virtual law
library
Admittedly, there are American precedents holding that
notary public may, in addition, act as a witness to the
executive of the document he has notarized. (Mahilum v.
Court Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox,
43 Ill. 130). There are others holding that his signing merely
as notary in a will nonetheless makes him a witness thereon
(Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will,
N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson
Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900;
W. Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve
the purpose of the law in this jurisdiction or are not decisive
of the issue herein because the notaries public and
witnesses referred to aforecited cases merely acted as
instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not
only as attesting witness but also acknowledging witness, a
situation not envisaged by Article 805 of the Civil Code which
reads:
ART. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will or file
another with the office of the Clerk of Court. [Emphasis
supplied]
To allow the notary public to act as third witness, or one the
attesting and acknowledging witnesses, would have the
effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be
requiring at least three credible witnesses to act as such and
of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary
public to acknowledge the will. The result would be, as has
been said, that only two witnesses appeared before the
notary public for or that purpose. In the circumstances, the
law would not be duly in
observed.chanroblesvirtualawlibrarychanrobles virtual law
library
FOR ALL THE FOREGOING, the judgment appealed from is
hereby reversed and the probate of the last will and
testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set
aside.chanroblesvirtualawlibrarychanrobles virtual law library
Cost against the appellee.
------------------------------------------------------------------------
JOSE ANTONIO GABUCAN, petitioner-appellant, vs. HON.
JUDGE LUIS D. MANTA JOSEFA G. VDA. DE YSALINA
and NELDA G. ENCLONAR, Respondents-Appellees.
Ignacio A. Calingin for appellant.
AQUINO, J.:
This case is about the dismissal of a petition for the probate
of a notarial will on the ground that it does not bear a thirty-
centavo documentary
stamp.chanroblesvirtualawlibrary chanrobles virtual law
library
The Court of First Instance of Camiguin in its "decision" of
December 28, 1977 in Special Proceeding No. 41 for the
probate of the will of the late Rogaciano Gabucan, dismissed
the proceeding (erroneously characterizes as an
"action")chanrobles virtual law library
The proceeding was dismissed because the requisite
documentary stamp was not affixed to the notarial
acknowledgment in the will and, hence, according to
respondent Judge, it was not admissible in evidence, citing
section 238 of the Tax Code, now section 250 of the 1977
Tax Code, which reads: chanrobles virtual law library
SEC. 238. Effect of failure to stamp taxable document. - An
instrument, document, or paper which is required by law to
be stamped and which has been signed, issued, accepted,
or transferred without being duly stamped, shall not be
recorded, nor shall it or any copy thereof or any record of
transfer of the same be admitted or used in evidence in
any court until the requisite stamp or stamps shall have been
affixed thereto and
cancelled.chanroblesvirtualawlibrary chanrobles virtual law
library
No notary public or other officer authorized to administer
oaths shall add his jurat or acknowledgment to any
document subject to documentary stamp tax unless the
proper documentary stamps are affixed thereto and
cancelled.
The probate court assumed that the notarial
acknowledgment of the said will is subject to the thirty-
centavo documentary stamp tax fixed in section 225 of the
Tax Code, now section 237 of the 1977 Tax
Code.chanroblesvirtualawlibrary chanrobles virtual law
library
Respondent Judge refused to reconsider the dismissal in
spite of petitioner's manifestation that he had already
attached the documentary stamp to the original of the will.
(See Mahilum vs. Court of Appeals, 64 O. G. 4017, 17 SCRA
482, 486.) chanrobles virtual law library
The case was brought to this Court by means of a petition
for mandamus to compel the lower court to allow petitioner's
appeal from its decision. In this Court's resolution of January
21, 1980 the petition for mandamus was treated in the
interest of substantial and speedy justice as an appeal under
Republic Act No. 5440 as well as a special civil action of
certiorari under Rule 65 of the Rules of
Court.chanroblesvirtualawlibrary chanrobles virtual law
library
We hold that the lower court manifestly erred in declaring
that, because no documentary stamp was affixed to the will,
there was "no will and testament to probate" and,
consequently, the alleged "action must of necessity be
dismissed".chanroblesvirtualawlibrary chanrobles virtual law
library
What the probate court should have done was to require the
petitioner or proponent to affix the requisite thirty-centavo
documentary stamp to the notarial acknowledgment of the
will which is the taxable portion of that
document.chanroblesvirtualawlibrary chanrobles virtual law
library
That procedure may be implied from the provision of section
238 that the non-admissibility of the document, which does
not bear the requisite documentary stamp, subsists only
"until the requisite stamp or stamps shall have been affixed
thereto and cancelled." chanrobles virtual law library
Thus, it was held that the documentary stamp may be affixed
at the time the taxable document is presented in evidence
(Del Castillo vs. Madrilena 49 Phil. 749). If the promissory
note does not bear a documentary stamp, the court should
have allowed plaintiff's tender of a stamp to supply the
deficiency. (Rodriguez vs. Martinez, 5 Phil. 67, 71. Note the
holding in Azarraga vs. Rodriguez, 9 Phil. 637, that the lack
of the documentary stamp on a document does not
invalidate such document. See Cia. General de Tabacos vs.
Jeanjaquet 12 Phil. 195, 201-2 and Delgado and Figueroa
vs. Amenabar 16 Phil. 403, 405-6.) chanrobles virtual law
library
WHEREFORE, the lower court's dismissal of the petition for
probate is reversed and set aside. It is directed to decide the
case on the merits in the light of the parties' evidence. No
costs.chanroblesvirtualawlibrary chanrobles virtual law
library
SO ORDERED.
------------------------------------------------------------------------
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA, MARIA NATIVIDAD DE JESUS AND DR. JAIME
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ,
as Judge of the Court of First Instance of Manila, Branch
and CONSUELO GONZALES VDA. DE
PRECILLA, Respondents.
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF
WILLS; GROUND FOR DISALLOWANCE; TESTATRIXS
DEFECTIVE EYESIGHT AS UNABLING HER TO READ
THE PROVISIONS OF LATER WILL. The declarations in
court of the opthalmologist as to the condition of the
testatrixs eyesight fully establish the fact that her vision
remained mainly for viewing distant objects and not for
reading print; that she was, at the time of the execution of
the second will on December 29, 1960, incapable of reading
and could not have read the provisions of the will supposedly
signed by her.
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE
EXECUTION OF THE WILL; CASE AT BAR. Upon its
face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet
of paper, apparently to save on space. Plainly, the testament
was not prepared with any regard for the defective vision of
Da. Gliceria, the typographical errors remained uncorrected
thereby indicating that the execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of
ones worldly possessions should be embodied in an
informal and untidy written instrument; or that the glaring
spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had
done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR
VALIDITY; ART. 808, NEW CIVIL CODE READING OF
THE WILL TWICE TO A BLIND TESTATOR; PURPOSE.
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself is to make the provisions thereof known to him, so
that he may be able to object if they are not in accordance
with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN
INSTANT CASE. Where as in the 1960 will there is
nothing in the record to show that the requisites of Art. 808 of
the Civil Code of the Philippines that "if the testator is blind,
the will shall be read to him twice," have not been complied
with, the said 1960 will suffer from infirmity that affects its
due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF
DECEASED PERSONS; ADMINISTRATORS; GROUNDS
FOR REMOVAL; ACQUISITION OF INTEREST ADVERSE
TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR
UNSUITABLE TO DISCHARGE THE TRUST; CASE AT
BAR. Considering that the alleged deed of sale was
executed when Gliceria del Rosario was already practically
blind and that the consideration given seems unconscionably
small for the properties, there was likelihood that a case for
annulment might be filed against the estate or heirs of
Alfonso Precilla. And the administratrix being the widow and
heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to
belong to the estate. This, plus her conduct in securing new
copies of the owners duplicate of titles without the courts
knowledge and authority and having the contract bind the
land through issuance of new titles in her husbands name,
cannot but expose her to the charge of unfitness or
unsuitability to discharge the trust, justifying her removal
from the administration of the estate.
6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION
MUST AFFECT "THE TITLE OR THE RIGHT OF
POSSESSION OF REAL PROPERTY." On the matter of
lis pendens, the provisions of the Rules of Court are clear:
notice of the pendency of an action may be recorded in the
office of the register of deeds of the province in which the
property is situated, if the action affects "the title or the right
of possession of (such) real property."cralaw virtua1aw
library
7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE.
The issue in controversy here is simply the fitness or
unfitness of said special administratrix to continue holding
the trust, it does not involve or affect at all the title to, or
possession of, the properties covered by TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-
26615) is not an action that can properly be annotated in the
record of the titles to the properties.
DECISION
G.R. No. L-27200 is an appeal from the order of the Court of
First Instance of Manila (in Sp. Proc. No. 62618) admitting to
probate the alleged last will an, testament of the late Gliceria
Avelino del Rosario dated 29 December 1960. G.R. Nos. L-
26615 and L-2684 are separate petitions for mandamus filed
by certain alleged heirs of said decedent seeking (1) to
compel the probate court to remove Consuelo S. Gonzales-
Precilla as special administratrix of the estate, for conflict of
interest, to appoint a new one in her stead; and (2) to order
the Register of Deeds of Manila to annotate notice of lis
pendens in TCT Nos. 81735, 81736 ,and 81737, registered
in the name of Alfonso Precilla, married to Consuelo
Gonzales y Narciso, and said to be properly belonging to the
estate of the deceased Gliceria A. del Rosario.
Insofar as pertinent to the issues involved herein, the facts of
these cases may be stated as follows:chanrob1es virtual
1aw library
Gliceria Avelino del Rosario died unmarried in the City of
Manila on 2 September 1965, leaving no descendents,
ascendants, brother or sister. At the time of her death, she
was said to be 90 years old more or less, and possessed of
an estate consisting mostly of real properties.
On 17 September 1965, Consuelo S. Gonzales Vda. de
Precilla, a niece of the deceased, petitioned the Court of
First Instance of Manila for probate of the alleged last will
and testament of Gliceria A. del Rosario, executed on 29
December 1960, and for her appointment as special
administratrix of the latters estate, said to be valued at about
P100,000.00, pending the appointment of a regular
administrator thereof.
The petition was opposed separately by several groups of
alleged heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named
in an earlier will executed by Gliceria A. del Rosario on 9
June 1956; (2) Jaime Rosario and children, relatives and
legatees in both the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards of the deceased
and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4)
Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6)
Pascuala Narciso de Manahan; (7) Severina, Rosa and
Josefa, surnamed Narciso, and Vicente and Delfin,
surnamed Mauricio, the latter five groups of persons all
claiming to be relatives of Doa Gliceria within the fifth civil
degree. The oppositions invariably charged that the
instrument executed in 1960 was not intended by the
deceased to be her true will; that the signatures of the
deceased appearing in the will was procured through undue
and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not
know the object of her bounty; that the instrument itself
reveals irregularities in its execution, and that the formalities
required by law for such execution have not been complied
with.
Oppositor Lucio V. Garcia, who also presented for probate
the 1956 will of the deceased, joined the group of Dr. Jaime
Rosario in registering opposition to the appointment of
petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly
heard, the probate court, in its order of 2 October 1965,
granted petitioners prayer and appointed her special
administratrix of the estate upon a bond for P30,000.00. The
order was premised on the fact the petitioner was managing
the properties belonging to the estate even during the
lifetime of the deceased, and to appoint another person as
administrator or co administrator at that stage of the
proceeding would only result in further confusion and
difficulties.
On 30 September 1965, oppositors Jaime Rosario, Et. Al.
filed with the probate court an urgent motion to require the
Hongkong & Shanghai Bank to report all withdrawals made
against the funds of the deceased after 2 September 1965.
The court denied this motion on 22 October 1965 for being
premature, it being unaware that such deposit in the name of
the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr.
Jaime Rosario and children, Antonio Jesus de Praga,
Natividad de Jesus and Fr. Lucio V. Garcia, petitioned the
court for the immediate removal of the special administratrix.
It was their claim that the special administratrix and her
deceased husband, Alfonso Precilla, 2 had caused Gliceria
A. del Rosario to execute a simulated and fraudulent deed of
absolute sale dated 10 January 1961 allegedly conveying
unto said spouses for the paltry sum of P30,000.00
ownership of 3 parcels of land and the improvements
thereon located on Quiapo and San Nicolas, Manila, with a
total assessed value of P334,050.00. Oppositors contended
that since it is the duty of the administrator to protect and
conserve the properties of the estate, and it may become
necessary that, an action for the annulment of the deed of
sale land for recovery of the aforementioned parcels of land
be filed against the special administratrix, as wife and heir of
Alfonso Precilla, the removal of the said administratrix was
imperative.
On 17 December 1965, the same oppositors prayed the
court for an order directing the Special Administratrix to
deposit with the Clerk of Court all certificates of title
belonging to the estate. It was alleged that on 22 October
1965, or after her appointment, petitioner Consuelo
Gonzales Vda. de Precilla, in her capacity as special
administratrix of the estate of the deceased Gliceria A. del
Rosario, filed with Branch IV of the Court of First Instance of
Manila a motion for the issuance of new copies of the
owners duplicates of certain certificates of title in the name
of Gliceria del Rosario, supposedly needed by her "in the
preparation of the inventory" of the properties constituting
the estate. The motion having been granted, new copies of
the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201,
66202 and 66204) were issued on 15 November 1965. On 8
December 1965, according to the oppositors, the same
special administratrix presented to the Register of Deeds the
deed of sale involving properties covered by TCT Nos.
66201, 66202 and 66204 supposedly executed by Gliceria
del Rosario on 10 January 1961 in favor of Alfonso Precilla,
and, in consequence, said certificates of title were cancelled
and new certificates (Nos. 81735, 81736 and 81737) were
issued in the name of Alfonso Precilla, married to Consuelo
S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D").
In declaring the due execution of the will, the probate court
took note that no evidence had been presented to establish
that the testatrix was not of sound mind when the will was
executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter;
that the fact that the 1956 will consisted of 12 pages
whereas the 1960 testament was contained in one page
does not render the latter invalid; that, the erasures and
alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the
instrumental witnesses which were noted by the oppositors
are even indicative of their truthfulness. The probate court,
also considering that petitioner had already shown capacity
to administer the properties of the estate and that from the
provisions of the will she stands as the person most
concerned and interested therein, appointed said petitioner
regular administratrix with a bond for P50,000.00. From this
order all the oppositors appealed, the case being docketed
in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the
oppositors motion of 14 December 1965 for the removal of
the then special administratrix, as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to
remove the special administratrix and to appoint another one
in her stead, is in order that an action may be filed against
the special administratrix for the annulment of the deed of
sale executed by the decedent on January 10, 1961. Under
existing documents, the properties sold pursuant to the said
deed of absolute sale no longer forms part of the estate. The
alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the
movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the
special administratrix be removed and that another one be
appointed to file such action. Such a course of action would
only produce confusion and difficulties in the settlement of
the estate. The movants may file the aforesaid proceedings,
preferably in an independent action, to secure the nullity of
the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the
deposit in court of the titles in the name of the decedent, the
same was also denied, for the reason that if the movants
were referring to the old titles, they could no longer be
produced, and if they meant the new duplicate copies
thereof that were issued at the instance of the special
administratrix, there would be no necessity therefor, because
they were already cancelled and other certificates were
issued in the name of Alfonso Precilla. This order
precipitated the oppositors filing in this Court of a petition for
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et.
Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was
given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending
in the court, the oppositors requested the Register of Deeds
of Manila to annotate a notice of lis pendens in the records
of TCT Nos. 81735, 81736, and 81737 in the name of
Alfonso Precilla. And when said official refused to do so, they
applied to the probate court (in Sp. Proc. No. 62618) for an
order to compel the Register of Deeds to annotate a lis
pendens notice in the aforementioned titles contending that
the matter of removal and appointment of the administratrix,
involving TCT Nos. 81735, 81736, and 81737, was already
before the Supreme Court. Upon denial of this motion on 12
November 1966, oppositors filed another mandamus action,
this time against the probate court and the Register of
Deeds. The case was docketed and given due course in this
Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns
the correctness of the order allowing the probate of the 1960
will.
The records of the probate proceeding fully establish the fact
that the testatrix, Gliceria A. del Rosario, during her lifetime,
executed two wills: one on 9 June 1956 consisting of 12
pages and written in Spanish, a language that she knew and
spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y.
Ayala and Valentin Marquez, and acknowledged before
notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed
by Messrs. Vicente Rosales, Francisco Decena, and
Francisco Lopez and acknowledged before notary public
Remigio M. Tividad.
Called to testify on the due execution of the 1960 will,
instrumental witnesses Decena, Lopez and Rosales
uniformly declared that they were individually requested by
Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of
Doa Gliceria A. del Rosario; that they arrived at the house
of the old lady at No. 2074 Azcarraga, Manila, one after the
other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind,
although she was being aided by Precilla when she walked;
3 that the will, which was already prepared, was first read
"silently" by the testatrix herself before she signed it; 4 that
he three witnesses thereafter signed the will in the presence
of the testatrix and the notary public and of one another.
There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their
voluntary act and deed, the notary public asked for their
respective residence certificates which were handed to him
by Alfonso Precilla, clipped together; 5 that after comparing
them with the numbers already written on the will, the notary
public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal
thereto. 6 They also testified that on that occasion no
pressure or influence has been exerted by any person upon
the testatrix to execute the will.
Of course, the interest and active participation of Alfonso
Precilla in the signing of this 1960 will are evident from the
records. The will appeared to have been prepared by one
who is not conversant with the spelling of Tagalog words,
and it has been shown that Alfonso Precilla is a Cebuano
who speaks Tagalog with a Visayan accent. 7 The witnesses
to the will, two of whom are fellow Visayans, 8 admitted their
relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on
29 December 1960 to witness an important document, 10
and who took their residence certificates from them a few
days before the will was signed. 11 Precilla had met the
notary public and witnesses Rosales and Lopez at the door
of the residence of the old woman; he ushered them to the
room at the second floor where the signing of the document
took place; 12 then he fetched witness Decena from the
latters haberdashery shop a few doors away and brought
him to, the house the testatrix. 13 And when the will was
actually executed Precilla was present. 14
The oppositors-appellants in the present case, however,
challenging the correctness of the probate courts ruling,
maintain that on 29 December 1960 the eyesight of Gliceria
del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the
testimonies of witnesses Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V.
Tamesis very material and illuminating. Said
ophthalmologist, whose expertise was admitted by both
parties, testified, among other things, that when Doa
Gliceria del Rosario saw him for consultation on 11 March
1960 he found her left eye to have cataract (opaque lens),
15 and that it was "above normal in pressure", denoting a
possible glaucoma, a disease that leads to blindness 16 As
to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph
"Q But is there anything here in the entry appearing in the
other documents Exhibits 3-B, 3-C and 3-D from which you
could inform the court as to the condition of the vision of the
patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction.
that is setting of glass by myself which showed that the right
eye with my prescription of glasses had a vision of 2 over 60
(20/60) and for the left eye with her correction 20 over 300
(20/300).
"Q In laymans language, Doctor, what is the significance of
that notation that the right had a degree of 20 over 60
(20/60)?
"A It meant that eye at least would be able to recognize
objects or persons at a minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?
"A Apparently that is only a record for distance vision, for
distance sight, not for near."cralaw virtua1aw library
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records also show that although Dr. Tamesis operated of
the left eye of the decedent at the Lourdes Hospital on 8
August 1960; as of 23 August 1960, inspite of the glasses
her vision was only "counting fingers," 17 at five feet. The
cross-examination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you
prescribed lenses for her, or glasses?
"A After her discharge from the hospital, she was coming to
my clinic for further examination and then sometime later
glasses were prescribed.
x x x
"Q And the glasses prescribed by you enabled her to read,
Doctor?
"A As far as my record is concerned, with the glasses for the
left eye which I prescribed the eye which I operated
she could see only forms but not read. That is on the left
eye.
"Q How about the right eye?
"A The same, although the vision on the right eye is even
better than the left eye." (pages 34. 85. t.s.n., hearing of 23
March 1966).
Then, confronted with a medical certificate (Exhibit H) issued
by him on 29 November 1965 certifying that Gliceria del
Rosario was provided with aphakic lenses and "had been
under medical supervision up to 1963 with apparently good
vision", the doctor had this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you
mean that she was able to read?
"A No, not necessarily, only able to go around, take care of
herself and see. This I can tell you, this report was made on
pure recollections and I recall she was using her glasses
although I recall also that we have to give her medicines to
improve her vision, some medicines to improve her
identification some more.
x x x distances. Writing or signing of ones name, when sufficiently
"Q What about the vision in the right eve, was that corrected
by the glasses?
"A Yes, with the new prescription which I issued on 80
August 1960. It is in the clinical record.
"Q The vision in the right eye was corrected?
"A Yes That is the vision for distant objects."cralaw virtua1aw
library
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated
the deceased and, therefore, has first hand knowledge of the
actual condition of her eyesight from August, 1960 up to
1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her
being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not for
reading print. Thus, the conclusion is inescapable that with
the condition of her eyesight in August, 1960, and there is no
evidence that it had improved by 29 December 1960,
Gliceria del Rosario was incapable f reading, and could not
have read the provisions of the will supposedly signed by her
on 29 December 1960. It is worth noting that the
instrumental witnesses stated that she read the instrument
"silently" (t.s.n., pages 164-165). which is a conclusion and
not a fact.
Against the background of defective eyesight of the alleged
testatrix, the appearance of the will, Exhibit "D", acquires
striking significance. Upon its face, the testamentary
provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so
that the words had to be written very close on the top,
bottom and two sides of the paper, leaving no margin
whatsoever; the word "and" had to be written by the symbol"
&", apparently to save on space. Plainly, the testament was
not prepared with any regard for the defective vision of Doa
Gliceria. Further, typographical errors like "HULINH" for
"HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and
"acknowledged" for "acknowledge, remained uncorrected,
thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so
important a document containing the final disposition of
ones worldly possessions should be embodied in an
informal and untidily written instrument; or that the glaring
spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had
done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the
alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her
birthday, arrange flowers and attend to kitchen tasks shortly
prior to the alleged execution of the testament Exhibit "D", as
appears from the photographs, Exhibits "E" to "E-1", in no
way proves; that she was able to read a closely typed page,
since the acts shown do not require vision at close range. It
must be remembered that with the natural lenses removed,
her eyes had lost the power of adjustment to near vision, the
substituted glass lenses being rigid and uncontrollable by
her. Neither is the signing of checks (Exhibits "G" to "G-3")
by her indicative of ability to see at normal reading
practiced, becomes automatic, so that one need only to have
a rough indication of the place where the signature is to be
affixed in order to be able to write it. Indeed, a close
examination of the checks, amplified in the photograph,
Exhibit "O", et seq., reinforces the contention of oppositors
that the alleged testatrix could not see at normal reading
distance: the signatures in the checks are written far above
the printed base, lines, and the names of the payees as well
as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer
and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
contend, not unlike a blind testator, and the due execution of
her will would have required observance of the provisions of
Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again,
by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), 18 is to make the provisions
thereof known to him, so that he may be able to object if they
are not in accordance with his wishes. That the aim of the
law is to insure that the dispositions of the will are properly
communicated to and understood by the handicapped
testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to
the latter, not only once but twice, by two different persons,
and that the witnesses have to act within the range of his
(the testators) other senses. 19
In connection with the will here in question, there is nothing
in the records to show that the above requisites have been
complied with. Clearly, as already stated, the 1960 will
sought to be probated suffers from infirmity that affects its
due execution.
We also find merit in the complaint of oppositors Lucio V.
Garcia, Et Al., against the denial by the probate court of their
petition for the removal of Consuelo Gonzales Vda. de
Precilla as special administratrix of the estate of the
deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex
"B").
The oppositors petition was based allegedly on the
existence in the special administratrix of an interest adverse
to that of the estate. It was their contention that through
fraud her husband had caused the deceased Gliceria del
Rosario to execute a deed of sale, dated 10 January 1961,
by virtue of which the latter purportedly conveyed unto said
Alfonso D. Precilla, married to Consuelo Gonzales y Narciso,
the ownership of 3 parcels of land and the improvements
thereon, assessed at P334,050.00, for the sum of
P30,000.00.
In denying the petition, the probate court, in its order of 13
September 1966 (Annex "P", Petition) reasoned out that
since the properties were already sold no longer form part of
the estate. The conflict of interest would not be between the
estate and third parties, but among the different claimants of
said properties, in which case, according to the court, the
participation of the special administratrix in the action for
annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what
was being questioned was precisely the validity of the
conveyance or sale of the properties. In short, if proper, the
action for annulment would have to be undertaken on behalf
of the estate by the special administratrix, affecting as it
does the property or rights of the deceased. 20 For the rule
is that only where there is no special proceeding for the
settlement of the estate of the deceased may the legal heirs
commence an action arising out of a right belonging to their
ancestor. 21
There is no doubt that to settle the question of the due
execution and validity of the deed of sale, an ordinary and
separate action would have to be instituted, the matter not
falling within the competence of the probate court. 22
Considering the facts then before it, i.e., the alleged deed of
sale having been executed by Gliceria del Rosario on 10
January 1961, when she was already practically blind; and
that the consideration of P30,000.00 seems to be
unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for
annulment might indeed be filed against the estate or heirs
of Alfonso Precilla. And the administratrix, being the widow
and heir of the alleged transferee, cannot be expected to sue
herself in an action to recover property that may turn out to
belong to the estate. 22 Not only this, but the conduct of the
special administratrix in securing new copies of the owners
duplicates of TCT Nos. 66201, 66202, and 66204, without
the courts knowledge or authority, and on the pretext that
she needed them in the preparation of the inventory of the
estate, when she must have already known by then that the
properties covered therein were already "conveyed" to her
husband by the deceased, being the latters successor, and
having the contract bind the land through issuance of new
titles in her husbands name cannot but expose her to the
charge of unfitness or unsuitableness to discharge the trust,
justifying her removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the
oppositors motion to require the Hongkong and Shanghai
Bank to report all withdrawals made against the funds of the
deceased after 2 September 1965 and (2) the motion for
annotation of a lis pendens notice on TCT Nos. 81735,
81736 and 81737, the same are to be affirmed.
The probate court pointed out in its order of 22 October 1965
(Annex "H") that it could not have taken action on the
complaint against the alleged withdrawals from the bank
deposits of the deceased, because as of that time the court
had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in
her pleading of 30 October 1965, the withdrawals referred to
by the oppositors could be those covered by checks issued
in the name of Gliceria del Rosario during her lifetime but
cleared only after her death. That explanation, which not
only appears plausible but has not been rebutted by the
petitioners-oppositors, negates any charge of grave abuse in
connection with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the
provisions of the Rules of Court are clear: notice of the
pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is
situated, if the action affects "the title or the right of
possession of (such) real property." 23 In the case at bar, the
pending action which oppositors seek to annotate in the
records of TCT Nos. 81735, 81736, and 81737 is the
mandamus proceeding filed in this Court (G.R. No. L-26615).
As previously discussed in this opinion, however, that case is
concerned merely with the correctness of the denial by the
probate court of the motion for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in
controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does
not involve or affect at all the title to, or possession of, the
properties covered by said TCT Nos. 81735, 81736 and
81737. Clearly, the pendency of such case (L-26615) is not
an action that can properly be annotated in the record of the
titles to the properties.
FOR THE FOREGOING REASONS, the order of the court
below allowing to probate the alleged 1960 will of Gliceria A.
del Rosario is hereby reversed and set aside. The petition in
G.R. No. L-26615 being meritorious, the appealed order is
set aside and the court below is ordered to remove the
administratrix, Consuelo Gonzales Vda. de Precilla, and
appoint one of the heirs intestate of the deceased Doa
Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late
Alfonso D. Precilla. And in Case G.R. No. L-26864, petition
is dismissed. No costs.
In the Matter of the Probate of the Last Will and
Testament of the Deceased Brigido Alvarado, CESAR
ALVARADO, Petitioner, v. HON. RAMON G. GAVIOLA,
JR., Presiding Justice, HON. MA. ROSARIO QUETULIO
LOSA and HON. LEONOR INES LUCIANO, Associate
Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, Respondents.
1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL
CODE; SCOPE OF THE TERM "BLINDNESS." The
following pronouncement in Garcia v. Vasquez provides an
insight into the scope of the term "blindness" as used in Art.
808, to wit: "The rationale behind the requirement of reading
the will to the testator if he is blind or incapable of reading
the will himself (as when he is illiterate), is to make the
provisions thereof known to him, so that he may be able to
object if they are not in accordance with his wishes . . ."
Clear from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of
his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that
Brigido Alvarado comes within the scope of the term "blind"
as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer
who drafted the will and codicil did so conformably with his
instructions.
2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE.
Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to
make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to
object if anything is contrary to his instructions.
3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH,
ACCEPTABLE; REASON. This Court has held in a
number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied,
the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all
kinds of fraud and trickery but are never intended to be so
rigid and inflexible as to destroy the testamentary privilege.
The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testators will.
4. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar,
private respondent read the testators will and codicil aloud
in the presence of the testator, his three instrumental
witnesses, and the notary public. Prior and subsequent
thereto, the testator affirmed, upon being asked, that the
contents read corresponded with his instructions. Only then
did the signing and acknowledgement take place. There is
no evidence, and petitioner does not so allege, that the
contents of the will and codicil were not sufficiently made
known and communicated to the testator. On the contrary,
with respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with
his expressed wishes even prior to 5 November 1977 when
Atty. Rino went to the testators residence precisely for the
purpose of securing his conformity to the draft.
DECISION
Before us is an appeal from the Decision dated 11 April 1986
1 of the First Civil Cases Division of the then Intermediate
Appellate Court, now Court of Appeals, which affirmed the
Order dated 27 June 1983 2 of the Regional Trial Court of
Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado
executed a notarial will entitled "Huling Habilin" wherein he
disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial Court
of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
execution, the testator did not read the final draft of the will
himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in
the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the
reading with their own respective copies previously furnished
them.
Meanwhile, Brigidos holographic will was subsequently
admitted to probate on 9 December 1977. On the 29th day
of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling
Habilin na May Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testators eye operation.
Brigido was then suffering from glaucoma. But the
disinheritance and revocatory clauses were unchanged. As
in the case of the notarial will, the testator did not personally
read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the
presence of the three instrumental witnesses (same as those
of the notarial will) and the notary public who followed the
reading using their own copies.
A petition for the probate of the notarial will and codicil was
filed upon the testators death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna. 5 Petitioner, in
turn, filed an Opposition on the following grounds: that the
will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise
mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was
executed under duress, or influence of fear or threats; that it
was procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lions
share of the testators estate; and lastly, that the signature of
the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order was
issued on 27 June 1983 from which an appeal was made to
respondent court. The main thrust of the appeal was that the
deceased was blind within the meaning of the law at the time
his "Huling Habilin" and the codicil attached thereto were
executed; that since the reading required by Art. 808 of the
Civil Code was admittedly not complied with, probate of the
deceaseds last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision
under review with the following findings: that Brigido
Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading
requirement of Art. 808 was substantially complied with
when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary
public following the reading with their respective copies of
the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to
the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido
Alvarado blind for purposes of Art. 808 at the time his "Huling
Habilin" and its codicil were executed? If so, was the double-
reading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following
facts: Brigido Alvarado was not totally blind at the time the
will and codicil were executed. However, his vision on both
eyes was only of "counting fingers at three (3) feet" by
reason of the glaucoma which he had been suffering from for
several years and even prior to his first consultation with an
eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808
which reads:jgc:chanrobles.com.ph
"Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing, witnesses, and again,
by the notary public before whom the will is
acknowledged."cralaw virtua1aw library
Petitioner contends that although his father was not totally
blind when the will and codicil were executed, he can be so
considered within the scope of the term as it is used in Art.
808. To support his stand, petitioner presented before the
trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine
Eye Research Institute), 6 the contents of which were
interpreted in laymans terms by Dr. Ruperto Roasa, whose
expertise was admitted by private Respondent. 7 Dr. Roasa
explained that although the testator could visualize fingers at
three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his
first consultation. 8
On the other hand, the Court of Appeals, contrary to the
medical testimony, held that the testator could still read on
the day the will and the codicil were executed but chose not
to do so because of "poor eyesight." 9 Since the testator was
still capable of reading at that time, the court a quo
concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondents staunch contention that the
testator was still capable of reading at the time his will and
codicil were prepared, the fact remains and this was testified
to by his witnesses, that Brigido did not do so because of his
"poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for
him.
The following pronouncement in Garcia v. Vasquez 13
provides an insight into the scope of the term "blindness" as
used in Art. 808, to wit:jgc:chanrobles.com.ph
"The rationale behind the requirement of reading the will to
the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they
are not in accordance with his wishes . . ."cralaw virtua1aw
library
Clear from the foregoing is that Art. 808 applies not only to
blind testators but also to those who, for one reason or
another, are "incapable of reading the(ir) will(s)." Since
Brigido Alvarado was incapable of reading the final drafts of
his will and codicil on the separate occasions of their
execution due to his "poor," "defective," or "blurred" vision,
there can be no other course for us but to conclude that
Brigido Alvarado comes within the scope of the term "blind"
as it is used in Art. 808. Unless the contents were read to
him, he had no way of ascertaining whether or not the lawyer
who drafted the will and codicil did so conformably with his
instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain
whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido
Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public
before whom the will was acknowledged. The purpose is to
make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to
object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil.
Instead of the notary public and an instrumental witness, it
was the lawyer (private respondent) who drafted the eight-
paged will and the five-paged codicil who read the same
aloud to the testator, and read them only once, not twice as
Art. 808 requires.
Private respondent however insists that there was
substantial compliance and that the single reading suffices
for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance is a strict
compliance or compliance to the letter and since it is
admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido,
probate of the latters will and codicil should have been
disallowed.
We sustain private respondents stand and necessarily, the
petition must be denied.
This Court has held in a number of occasions that
substantial compliance is acceptable where the purpose of
the law has been satisfied, the reason being that the
solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but
are never intended to be so rigid and inflexible as to destroy restrain and curtail the exercise of the right to make a will.
the testamentary privilege. 14 So when an interpretation already given assures such ends,
any other interpretation whatsoever, that adds nothing but
In the case at bar, private respondent read the testators will demands more requisites entirely unnecessary, useless and
and codicil aloud in the presence of the testator, his three frustrative of the testators will, must be disregarded"
instrumental witnesses, and the notary public. Prior and (Emphasis supplied).
subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Brigido Alvarado had expressed his last wishes in clear and
Only then did the signing and acknowledgement take place. unmistakable terms in his "Huling Habilin" and the codicil
There is no evidence, and petitioner does not so allege, that attached thereto. We are unwilling to cast these aside for the
the contents of the will and codicil were not sufficiently made mere reason that a legal requirement intended for his
known and communicated to the testator. On the contrary, protection was not followed strictly when such compliance
with respect to the "Huling Habilin," the day of the execution had been rendered unnecessary by the fact that the purpose
was not the first time that Brigido had affirmed the truth and of the law, i.e., to make known to the incapacitated testator
authenticity of the contents of the draft. The uncontradicted the contents of the draft of his will, had already been
testimony of Atty. Rino is that Brigido Alvarado already accomplished. To reiterate, substantial compliance suffices
acknowledged that the will was drafted in accordance with where the purpose has been served.
his expressed wishes even prior to 5 November 1977 when
Atty. Rino went to the testators residence precisely for the WHEREFORE, the petition is DENIED and the assailed
purpose of securing his conformity to the draft. 15 Decision of respondent Court of Appeals dated 11 April 1986
is AFFIRMED. Considering the length of time that this case
Moreover, it was not only Atty. Rino who read the documents has remained pending, this decision is immediately
on 5 November and 29 December 1977. The notary public executory. Costs against petitioner.
and the three instrumental witnesses likewise read the will
and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena SO ORDERED.
(the notary public) and Dr. Crescente O. Evidente (one of the
three instrumental witnesses and the testators physician)
asked the testator whether the contents of the documents
were of his own free will. Brigido answered in the affirmative.
16 With four persons following the reading word for word
with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him
(those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the
typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were
persons known to the testator, one being his physician (Dr.
Evidente) and another (Potenciano C. Ranieses) being
known to him since childhood.

The spirit behind the law was served though the letter was
not. Although there should be strict compliance with the
substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be
brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the
testators will. 17

As a final word to convince petitioner of the propriety of the

trial courts Probate Order and its affirmance by the Court of
Appeals, we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:jgc:chanrobles.com.ph

"The object of the solemnities surrounding the execution of

wills is to close the door against bad faith and fraud, to avoid
the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the 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