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G.R. No. L-1787 August 27, 1948 The testator affixed his thumbmark to the instrument instead of
signing his name. The reason for this was that the testator was
suffering from "partial paralysis." While another in testator's
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,
place might have directed someone else to sign for him, as
vs.
appellant contends should have been done, there is nothing
AGUSTIN LIBORO, oppositor-appellant.
curious or suspicious in the fact that the testator chose the use of
mark as the means of authenticating his will. It was a matter of
Tirona, Gutierrez and Adorable for appellant. taste or preference. Both ways are good. A statute requiring a will
Ramon Diokno for appellee. to be "signed" is satisfied if the signature is made by the
testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28
R. C. L., 117.)
TUASON, J.:

With reference to the second assignment of error, we do not


In the Court of First Instance of Batangas the appellant opposed
share the opinion that the trial court communicated an abuse of
unsuccessfully the probate of what purports to be the last will discretion in allowing the appellant to offer evidence to prove
and testament (Exhibit A) of Don Sixto Lopez, who died at the age knowledge of Spanish by the testator, the language in which the
of 83 in Balayan, Batangas, on March 3, 1947, almost six months
will is drawn, after the petitioner had rested his case and after the
after the document in question was executed. In the court below, opponent had moved for dismissal of the petition on the ground
the present appellant specified five grounds for his opposition, to of insufficiency of evidence. It is within the discretion of the court
wit: (1) that the deceased never executed the alleged will; (2) that
whether or not to admit further evidence after the party offering
his signature appearing in said will was a forgery; (3) that at the the evidence has rested, and this discretion will not be reviewed
time of the execution of the will, he was wanting in testamentary except where it has clearly been abused. (64 C. J., 160.) More, it is
as well as mental capacity due to advanced age; (4) that, if he did
within the sound discretion of the court whether or not it will
ever execute said will, it was not executed and attested as allow the case to be reopened for the further introduction of
required by law, and one of the alleged instrumental witnesses evidence after a motion or request for a nonsuit, or a demurrer to
was incapacitated to act as such; and it was procured by duress,
the evidence, and the case may be reopened after the court has
influence of fear and threats and undue and improper pressure announced its intention as to its ruling on the request, motion, or
and influence on the part of the beneficiaries instituted therein, demurrer, or has granted it or has denied the same, or after the
principally the testator's sister, Clemencia Lopez, and the herein motion has been granted, if the order has not been written, or
proponent, Jose S. Lopez; and (5) that the signature of the entered upon the minutes or signed. (64 C. J., 164.)
testator was procured by fraud or trick.

In this jurisdiction this rule has been followed. After the parties
In this instance only one of these objections is reiterated, have produced their respective direct proofs, they are allowed to
formulated in these words: "That the court a quo erred in holding
offer rebutting evidence only, but, it has been held, the court, for
that the document Exhibit "A" was executed in all particulars as good reasons, in the furtherance of justice, may permit them to
required by law." To this objection is added the alleged error of offer evidence upon their original case, and its ruling will not be
the court "in allowing the petitioner to introduce evidence that
disturbed in the appellate court where no abuse of discretion
Exhibit "A" was written in a language known to the appears. (Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs.
decedent after petitioner rested his case and over the vigorous Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed
objection of the oppositor.
when it is newly discovered, or where it has been omitted through
inadvertence or mistake, or where the purpose of the evidence is
The will in question comprises two pages, each of which is to the evidence is to correct evidence previously offered. (I
written on one side of a separate sheet. The first sheet is not Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J.,
paged either in letters or in Arabic numerals. This, the appellant 160-163.) The omission to present evidence on the testator's
believes, is a fatal defect. knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.
The purpose of the law in prescribing the paging of wills is guard
against fraud, and to afford means of preventing the substitution Although alien to the second assignment of error, the appellant
or of defecting the loss of any of its pages. (Abangan vs. impugns the will for its silence on the testator's understanding of
Abangan, 40 Phil., 476.) In the present case, the omission to put a the language used in the testament. There is no statutory
page number on the first sheet, if that be necessary, is supplied requirement that such knowledge be expressly stated in the will
by other forms of identification more trustworthy than the itself. It is a matter that may be established by proof aliunde. This
conventional numerical words or characters. The unnumbered Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in
page is clearly identified as the first page by the internal sense of which the probate of a will written in Tagalog was ordered
its contents considered in relation to the contents of the second although it did not say that the testator knew that idiom. In fact,
page. By their meaning and coherence, the first and second lines there was not even extraneous proof on the subject other than the
on the second page are undeniably a continuation of the last fact that the testator resided in a Tagalog region, from which the
sentence of the testament, before the attestation clause, which court said "a presumption arises that said Maria Tapia knew the
starts at the bottom of the preceding page. Furthermore, the Tagalog dialect.
unnumbered page contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that the testator was in
The order of the lower court ordering the probate of the last will
full use of his testamentary faculty, all of which, in the logical and testament of Don Sixto Lopez is affirmed, with costs.
order of sequence, precede the direction for the disposition of the
marker's property. Again, as page two contains only the two lines
above mentioned, the attestation clause, the mark of the testator
and the signatures of the witnesses, the other sheet can not by
any possibility be taken for other than page one. Abangan vs.
Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922
are decisive of this issue.

Although not falling within the purview and scope of the first
assignment of error, the matter of the credibility of the witnesses
is assailed under this heading. On the merits we do not believe
that the appellant's contention deserves serious consideration.
Such contradictions in the testimony of the instrumental
witnesses as are set out in the appellant's brief are incidents not
all of which every one of the witnesses can be supposed to have
perceived, or to recall in the same order in which they occurred.

Everyday life and the result of investigations made in


the field of experimental psychology show that the
contradictions of witnesses generally occur in the
details of a certain incident, after a long series of
questioning, and far from being an evidence of
falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating
their impressions they should not agree in the minor
details; hence, the contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
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A.M. No. 2026-CFI December 19, 1981 As there was no opposition, Judge Honrado commissioned his
deputy clerk of court, Evangeline S. Yuipco, to hear the evidence.
The transcripts of the stenographic notes taken at the hearing
NENITA DE VERA SUROZA, complainant,
before the deputy clerk of court are not in the record.
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of
Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy In an order dated March 31, 1975, Judge Honrado appointed
Clerk of Court, respondents. Marina as administratrix. On the following day, April 1, Judge
Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw
AQUINO, J.:
the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the
Should disciplinary action be taken against respondent judge for custodian of the passbooks, to deliver them to Marina.
having admitted to probate a will, which on its face
is void because it is written in English, a language not known to
Upon motion of Marina, Judge Honrado issued another order
the illiterate testatrix, and which is probably a forged will because
dated April 11, 1975, instructing a deputy sheriff to eject the
she and the attesting witnesses did not appear before the notary
occupants of the testatrix's house, among whom was Nenita V.
as admitted by the notary himself?
Suroza, and to place Marina in possession thereof.

That question arises under the pleadings filed in the testate case
That order alerted Nenita to the existence of the testamentary
and in the certiorari case in the Court of Appeals which reveal the
proceeding for the settlement of Marcelina's estate. She and the
following tangled strands of human relationship:
other occupants of the decedent's house filed on April 18 in the
said proceeding a motion to set aside the order of April 11
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army ejecting them. They alleged that the decedent's son Agapito was
(Philippine Scouts), Fort McKinley, married Marcelina Salvador in the sole heir of the deceased, that he has a daughter named Lilia,
1923 (p. 150, Spec. Proc. No. 7816). They were childless. They that Nenita was Agapito's guardian and that Marilyn was not
reared a boy named Agapito who used the surname Suroza and Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
who considered them as his parents as shown in his 1945 Record of testate case). Later, they questioned the probate
marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. court's jurisdiction to issue the ejectment order.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5
years old when Mauro married Marcelina in 1923).
In spite of the fact that Judge Honrado was already apprised that
persons, other than Marilyn, were claiming Marcelina's estate, he
Mauro died in 1942. Marcelina, as a veteran's widow, became a issued on April 23 an order probating her supposed will wherein
pensioner of the Federal Government. That explains why on her Marilyn was the instituted heiress (pp. 74-77, Record).
death she had accumulated some cash in two banks.
On April 24, Nenita filed in the testate case an omnibus petition
Agapito and Nenita begot a child named Lilia who became a "to set aside proceedings, admit opposition with counter-petition
medical technologist and went abroad. Agapito also became a for administration and preliminary injunction". Nenita in that
soldier. He was disabled and his wife Nenita was appointed as his motion reiterated her allegation that Marilyn was a stranger to
guardian in 1953 when he was declared an incompetent in Special Marcelina, that the will was not duly executed and attested, that it
Proceeding No. 1807 of the Court of First Instance of Rizal, Pasig was procured by means of undue influence employed by Marina
Branch I (p. 16, Rollo of CA-G.R. No. 08654-R). and Marilyn and that the thumbmarks of the testatrix were
procured by fraud or trick.
In that connection, it should be noted that a woman named
Arsenia de la Cruz wanted also to be his guardian in another Nenita further alleged that the institution of Marilyn as heir is void
proceeding. Arsenia tried to prove that Nenita was living because of the preterition of Agapito and that Marina was not
separately from Agapito and that she (Nenita) admitted to qualified to act as executrix (pp. 83-91, Record).
Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
To that motion was attached an affidavit of Zenaida A. Penaojas
the housemaid of Marcelina, who swore that the alleged will was
Judge Bienvenido A. Tan dismissed the second guardianship falsified (p. 109, Record).
proceeding and confirmed Nenita's appointment as guardian of
Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
Not content with her motion to set aside the ejectment order (filed
veteran's hospital in San Francisco or Palo Alto, California (p. 87,
on April 18) and her omnibus motion to set aside the proceedings
Record).
(filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for
On a date not indicated in the record, the spouses Antonio Sy and letters of administration. In that opposition, Nenita assailed the
Hermogena Talan begot a child named Marilyn Sy, who, when a due execution of the will and stated the names and addresses of
few days old, was entrusted to Arsenia de la Cruz (apparently a Marcelina's intestate heirs, her nieces and nephews (pp. 113-121,
girl friend of Agapito) and who was later delivered to Marcelina Record). Nenita was not aware of the decree of probate dated
Salvador Suroza who brought her up as a supposed daughter of April 23, 1975.
Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R.
No.SP-08654-R). Marilyn used the surname Suroza. She stayed
To that opposition was attached an affidavit of Dominga Salvador
with Marcelina but was not legally adopted by Agapito. She
Teodocio, Marcelina's niece, who swore that Marcelina never
married Oscar Medrano and is residing at 7666 J.B. Roxas Street,
executed a win (pp. 124-125, Record).
Makati, apparently a neighbor of Marina Paje, a resident of 7668
J.B. Roxas Street.
Marina in her answer to Nenita's motion to set aside the
proceedings admitted that Marilyn was not Marcelina's
Marcelina supposedly executed a notarial will in Manila on July
granddaughter but was the daughter of Agapito and Arsenia de la
23, 1973, when she was 73 years old. That will which is in English
Cruz and that Agapito was not Marcelina's sonbut merely
was thumbmarked by her. She was illiterate. Her letters in English
an anak-anakan who was not legally adopted (p. 143, Record).
to the Veterans Administration were also thumbmarked by her
(pp. 38-39, CA Rollo). In that wig, Marcelina bequeathed all her
estate to her supposed granddaughter Marilyn. Judge Honrado in his order of July 17, 1975 dismissed Nenita's
counter-petition for the issuance of letters of administration
because of the non-appearance of her counsel at the hearing. She
Marcelina died on November 15, 1974 at the Veterans Hospital in
moved for the reconsideration of that order.
Quezon City. At the time of her death, she was a resident of 7374
San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-
square meter lot and house in that place. She acquired the lot in In a motion dated December 5, 1975, for the consolidation of all
1966 (p. 134, Record of testate case). pending incidents, Nenita V. Suroza reiterated her contention that
the alleged will is void because Marcelina did not appear before
the notary and because it is written in English which is not known
On January 13, 1975, Marina Paje, alleged to be a laundrywoman
to her (pp. 208-209, Record).
of Marcelina (P. 97, CA Rollo) and the executrix in her will (the
alternate executrix was Juanita Macaraeg, mother of Oscar,
Marilyn's husband), filed with the Court of First Instance of Rizal, Judge Honrado in his order of June 8, 1976 "denied" the various
Pasig Branch 25, a petition for the probate of Marcelina's alleged incidents "raised" by Nenita (p. 284, Record).
will. The case was assigned to Judge Reynaldo P. Honrado.
3

Instead of appealing from that order and the order probating the to resort to the special civil action of certiorari (Suroza vs.
wig, Nenita "filed a case to annul" the probate proceedings (p. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado.
Relying on that decision, Judge Honrado filed on November 17,
He dismissed it in his order of February 16, 1977 (pp. 398-402,
1981 a motion to dismiss the administrative case for having
Record).
allegedly become moot and academic.

Judge Honrado in his order dated December 22, 1977, after noting
We hold that disciplinary action should be taken against
that the executrix had delivered the estate to Marilyn, and that the
respondent judge for his improper disposition of the testate case
estate tax had been paid, closed the testamentary proceeding.
which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void
About ten months later, in a verified complaint dated October 12, win should have inherited the decedent's estate.
1978, filed in this Court, Nenita charged Judge Honrado with
having probated the fraudulent will of Marcelina. The complainant
A judge may be criminally liable or knowingly rendering an unjust
reiterated her contention that the testatrix was illiterate as shown
judgment or interlocutory order or rendering a manifestly unjust
by the fact that she affixed her thumbmark to the will and that she
judgment or interlocutory order by reason of inexcusable
did not know English, the language in which the win was written.
negligence or ignorance (Arts. 204 to 206, Revised Penal Code).
(In the decree of probate Judge Honrado did not make any finding
that the will was written in a language known to the testatrix.)
Administrative action may be taken against a judge of the court of
first instance for serious misconduct or inefficiency ( Sec. 67,
Nenita further alleged that Judge Honrado, in spite of his
Judiciary Law). Misconduct implies malice or a wrongful intent,
knowledge that the testatrix had a son named Agapito (the
not a mere error of judgment. "For serious misconduct to exist,
testatrix's supposed sole compulsory and legal heir), who was
there must be reliable evidence showing that the judicial acts
preterited in the will, did not take into account the consequences
complained of were corrupt or inspired by an intention to violate
of such a preterition.
the law, or were in persistent disregard of well-known legal rules"
(In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Nenita disclosed that she talked several times with Judge
Honrado and informed him that the testatrix did not know the
Inefficiency implies negligence, incompetence, ignorance and
executrix Marina Paje, that the beneficiary's real name is Marilyn
carelessness. A judge would be inexcusably negligent if he failed
Sy and that she was not the next of kin of the testatrix.
to observe in the performance of his duties that diligence,
prudence and circumspection which the law requires in the
Nenita denounced Judge Honrado for having acted corruptly in rendition of any public service (In re Climaco, Adm. Case No. 134-
allowing Marina and her cohorts to withdraw from various banks J, Jan. 21, 1974, 55 SCRA 107, 119).
the deposits Marcelina.
In this case, respondent judge, on perusing the will and noting
She also denounced Evangeline S. Yuipco, the deputy clerk of that it was written in English and was thumbmarked by an
court, for not giving her access to the record of the probate case obviously illiterate testatrix, could have readily perceived that the
by alleging that it was useless for Nenita to oppose the probate will is void.
since Judge Honrado would not change his decision. Nenita also
said that Evangeline insinuated that if she (Nenita) had ten
In the opening paragraph of the will, it was stated that English
thousand pesos, the case might be decided in her favor.
was a language "understood and known" to the testatrix. But in
Evangeline allegedly advised Nenita to desist from claiming the
its concluding paragraph, it was stated that the will was read to
properties of the testatrix because she (Nenita) had no rights
the testatrix "and translated into Filipino language". (p. 16,
thereto and, should she persist, she might lose her pension from
Record of testate case). That could only mean that the will was
the Federal Government.
written in a language not known to the illiterate testatrix and,
therefore, it is void because of the mandatory provision of article
Judge Honrado in his brief comment did not deal specifically with 804 of the Civil Code that every will must be executed in a
the allegations of the complaint. He merely pointed to the fact that language or dialect known to the testator. Thus, a will written in
Nenita did not appeal from the decree of probate and that in a English, which was not known to the Igorot testator, is void and
motion dated July 6, 1976 she asked for a thirty day period within was disallowed (Acop vs. Piraso, 52 Phil. 660).
which to vacate the house of the testatrix.
The hasty preparation of the will is shown in the attestation
Evangeline S. Yuipco in her affidavit said that she never talked clause and notarial acknowledgment where Marcelina Salvador
with Nenita and that the latter did not mention Evangeline in her Suroza is repeatedly referred to as the "testator" instead of
letter dated September 11, 1978 to President Marcos. "testatrix". Had respondent judge been careful and observant, he
could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the
Evangeline branded as a lie Nenita's imputation that she
supposed granddaughter as sole heiress and giving nothing at all
(Evangeline) prevented Nenita from having access to the record
to her supposed father who was still alive.
of the testamentary proceeding. Evangeline was not the
custodian of the record. Evangeline " strongly, vehemently and
flatly denied" Nenita's charge that she (Evangeline) said that the Furthermore, after the hearing conducted by respondent deputy
sum of ten thousand pesos was needed in order that Nenita could clerk of court, respondent judge could have noticed that the
get a favorable decision. Evangeline also denied that she has any notary was not presented as a witness.
knowledge of Nenita's pension from the Federal Government.
In spite of the absence of an opposition, respondent judge should
The 1978 complaint against Judge Honorado was brought to have personally conducted the hearing on the probate of the will
attention of this Court in the Court Administrator's memorandum so that he could have ascertained whether the will was validly
of September 25, 1980. The case was referred to Justice Juan A. executed.
Sison of the Court of Appeals for investigation, report and
recommendation. He submitted a report dated October 7, 1981.
Under the circumstances, we find his negligence and dereliction
of duty to be inexcusable.
On December 14, 1978, Nenita filed in the Court of Appeals
against Judge Honrado a petition for certiorari and prohibition
WHEREFORE, for inefficiency in handling the testate case of
wherein she prayed that the will, the decree of probate and all the
Marcelina S. Suroza, a fine equivalent to his salary for one month
proceedings in the probate case be declared void.
is imposed on respondent judge (his compulsory retirement falls
on December 25, 1981).
Attached to the petition was the affidavit of Domingo P. Aquino,
who notarized the will. He swore that the testatrix and the three
The case against respondent Yuipco has become moot and
attesting witnesses did not appear before him and that he
academic because she is no longer employed in the judiciary.
notarized the will "just to accommodate a brother lawyer on the
Since September 1, 1980 she has been assistant city fiscal of
condition" that said lawyer would bring to the notary the testatrix
Surigao City. She is beyond this Court's disciplinary jurisdiction
and the witnesses but the lawyer never complied with his
(Peralta vs. Firm Adm. Matter No. 2044-CFI November 21, 1980,
commitment.
101 SCRA 225).

The Court of Appeals dismissed the petition because Nenita's


SO ORDERED. G.R. No. L-13431 November 12, 1919
remedy was an appeal and her failure to do so did not entitle her
4

In re will of Ana Abangan. is not the object of the law to restrain and curtail the exercise of
GERTRUDIS ABANGAN, executrix-appellee, the right to make a will. So when an interpretation already given
vs. assures such ends, any other interpretation whatsoever, that
ANASTACIA ABANGAN, ET AL., opponents-appellants. adds nothing but demands more requisites entirely unnecessary,
useless and frustative of the testator's last will, must be
disregarded. lawphil.net
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
As another ground for this appeal, it is alleged the records do not
show that the testarix knew the dialect in which the will is written.
AVANCEA, J.:
But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality
On September 19, 1917, the Court of First Instance of Cebu where the testatrix was a neighbor is enough, in the absence of
admitted to probate Ana Abangan's will executed July, 1916. From any proof to the contrary, to presume that she knew this dialect in
this decision the opponent's appealed. which this will is written.

Said document, duly probated as Ana Abangan's will, consists of For the foregoing considerations, the judgment appealed from is
two sheets, the first of which contains all of the disposition of the hereby affirmed with costs against the appellants. So ordered.
testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three
witnesses. The following sheet contains only the attestation
clause duly signed at the bottom by the three instrumental
witnesses. Neither of these sheets is signed on the left margin by
the testatrix and the three witnesses, nor numbered by letters;
and these omissions, according to appellants' contention, are
defects whereby the probate of the will should have been denied.
We are of the opinion that the will was duly admitted to probate.

In requiring that each and every sheet of the will should also be
signed on the left margin by the testator and three witnesses in
the presence of each other, Act No. 2645 (which is the one
applicable in the case) evidently has for its object (referring to the
body of the will itself) to avoid the substitution of any of said
sheets, thereby changing the testator's dispositions. But when
these dispositions are wholly written on only one sheet signed at
the bottom by the testator and three witnesses (as the instant
case), their signatures on the left margin of said sheet would be
completely purposeless. In requiring this signature on the margin,
the statute took into consideration, undoubtedly, the case of a will
written on several sheets and must have referred to the sheets
which the testator and the witnesses do not have to sign at the
bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed
twice.

We cannot attribute to the statute such an intention. As these


signatures must be written by the testator and the witnesses in
the presence of each other, it appears that, if the signatures at the
bottom of the sheet guaranties its authenticity, another signature
on its left margin would be unneccessary; and if they do not
guaranty, same signatures, affixed on another part of same sheet,
would add nothing. We cannot assume that the statute regards of
such importance the place where the testator and the witnesses
must sign on the sheet that it would consider that their signatures
written on the bottom do not guaranty the authenticity of the
sheet but, if repeated on the margin, give sufficient security.

In requiring that each and every page of a will must be numbered


correlatively in letters placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is to know whether
any sheet of the will has been removed. But, when all the
dispositive parts of a will are written on one sheet only, the object
of the statute disappears because the removal of this single
sheet, although unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause.


Wherefore, without considering whether or not this clause is an
essential part of the will, we hold that in the one accompanying
the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the
sheet are formalities not required by the statute. Moreover,
referring specially to the signature of the testatrix, we can add
that same is not necessary in the attestation clause because this,
as its name implies, appertains only to the witnesses and not to
the testator since the latter does not attest, but executes, the will.

Synthesizing our opinion, we hold that in a will consisting of two


sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses, it is not
necessary that both sheets be further signed on their margins by
the testator and the witnesses, or be paged.

The object of the solemnities surrounding the execution of wills is


to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on this subject should be
interpreted in such a way as to attain these primordal ends. But,
on the other hand, also one must not lose sight of the fact that it
5

G.R. No. 42258 September 5, 1936 Julian Rodriguez and Gliceria Quisonia testified that they had not
seen Attorney Almario in the morning of September 7, 1933, in the
house of the deceased where they were then living, and that the
In re Will of the deceased Leoncia Tolentino. VICTORIO
first time that they saw him there was at about 12 o'clock noon on
PAYAD, petitioner-appellant,
September 8th of said year, when Leoncia Tolentino was already
vs.
dead, Gliceria Quisonia stating that on that occasion Almario
AQUILINA TOLENTINO, oppositor-appellant.
arrived there accompanied only by woman named Pacing. They
did not state that Almario was accompanied by Pedro L. Cruz,
DIAZ, J.: Jose Ferrer Cruz and Perfecto L. Ona, the instrumental witnesses
of the will. Said two witnesses, however, could not but admit that
their room was situated at the other end of the rooms occupied by
There are two motions filed by the oppositor Aquilina Tolentino, the deceased herself and by the petitioner Victorio Payad, and
pending resolution: That of January 29, 1935, praying for the that their said room and that of Victorio Payad are separated by
reconsideration of the decision of the court and that of the same
the stairs of the house; that Gliceria Quisonia saw the deceased
date, praying for a new trial. only once on the 7th and twice on the 8th, and that Julian
Rodriguez stayed in his room, without leaving it, from 9 to 12
The oppositor bases her motion for reconsideration upon the o'clock a. m. on the 7th of said month. Gliceria Quisonia further
following facts relied upon in her pleading: stated that in the morning of September 7th, she prepared the
noonday meal in the kitchen which was situated under the house.
Under such circumstances it is not strange that the two did not
1. That the testatrix did not personally place her thumbmark on see the testatrix when, according to the evidence for the
her alleged will; petitioner, she made her will and signed it by means of her
thumbmark. In order to be able to see her and also Almario and
2. That the testatrix did not request Attorney Almario to write her the instrumental witnesses of the will, on that occasion, it was
name and surname on the spaces of the will where she should necessary for them to enter the room where the deceased was, or
place her thumbmarks; at least the adjoining room where the will was prepared by
Attorney Almario, but they did not do so.
3. That the will in question was not signed by the testatrix on the
date indicated therein; Gliceria Quisonia and Julian Rodriguez also testified that on the
7th the testatrix was already so weak that she could not move and
that she could hardly be understood because she could no longer
4. That the testatrix never made the will in question; and enunciate, making it understood thereby, that in such condition it
was absolutely impossible for her to make any will. The attorney
5. That on the date the will in question was executed, the testatrix for the oppositor insists likewise and more so because, according
was no longer in a physical or mental condition to make it. to him and his witness Paz de Leon, two days before the death of
the testatrix, or on September 6, 1933, she could not even open
her eyes or make herself understood.
We have again reviewed the evidence to determine once more
whether the errors assigned by the oppositor in her brief have not
been duly considered, whether some fact or detail which might The testimony of said witnesses is not sufficient to overthrow, or
have led us to another conclusion has been overlooked, or discredit the testimony of the petitioner-appellant or that of
whether the conclusions arrived at in our decision are not Attorney Almario and the three instrumental witnesses of the will
supported by the evidence. We have found that the testatrix because, to corroborate them, we have of record the testimony of
Leoncia Tolentino, notwithstanding her advanced age of 92 years, the physician of the deceased and the accountant Ventura Loreto
was in good health until September 1, 1933. She had a slight cold who are two disinterested witnesses, inasmuch as the outcome of
on said date for which reason she was visited by her physician, these proceedings does not affect them in the least. The two
Dr. Florencio Manuel. Said physician again visited her three or testified that two, three or four days before the death of the
four days later and found her still suffering from said illness but testatrix, they visited her in her home, the former professionally,
there was no indication that she had but a few days to live. She and the latter as an acquaintance, and they then found her not so
ate comparatively well and conserved her mind and memory at ill as to be unable to move or hold a conversation. They stated
least long after noon of September 7, 1933. She took her last that she spoke to them intelligently; that she answered all the
nourishment of milk in the morning of the following day, questions which they had put to her, and that she could still move
September 8, 1933, and death did not come to her until 11 o'clock in spite of her weakness.
sharp that morning.
In view of the foregoing facts and considerations, we deem it
The will in question was prepared by Attorney Marciano Almario clear that the oppositor's motion for reconsideration is
between 11 and 12 o'clock noon on September 7, 1933, in the unfounded.
house of the testatrix Leoncia Tolentino, after she had expressed
to said attorney her desire to make a will and bequeath her The oppositor's motion for a new trial is based upon the following
property to the petitioner Victorio Payad in compensation facts: (1) That upon her death, the deceased left a letter signed by
according to her, for his diligent and faithful services rendered to herself, placed in a stamped envelope and addressed to Teodoro
her. Victorio Payad had grown up under the care of the testatrix R. Yangco, with instructions not to open it until after her death; (2)
who had been in her home from childhood. The will was written that there are witnesses competent to testify on the letter in
by Attorney Almario in his own handwriting, and was written in question, in addition to other evidence discovered later, which
Spanish because he had been instructed to do so by the testatrix. could not be presented at the trial; (3) that in the letter left by the
It was later read to her in the presence of Pedro L. Cruz, Jose deceased, she transfers all her property to Teodoro R. Yangco
Ferrer Cruz, Perfecto L. Ona and other persons who were then stating therein that, upon her death, all the property in question
present. should become Yangco's. From this alleged fact, the oppositor
infers that the deceased never had and could not have had the
The testatrix approved all the contents of the document and intention to make the will in question, and (4) that said oppositor
requested Attorney Almario to write her name where she had to knew of the existence of said letter only after her former attorney,
sign by means of her thumbmark in view of the fact that her Alejandro Panis, had been informed thereof in May, 1935, by one
fingers no longer had the necessary strength to hold a pen. She of Teodoro R. Yangco's attorneys named Jose Cortes.
did after having taken the pen and tried to sign without anybody's
help. Attorney Almario proceeded to write the name of the Subsequent to the presentation of the motion for a new trial, the
testatrix on the three pages composing the will and the testatrix oppositor filed another supplementary motion alleging that she
placed her thumbmark on said writing with the help of said had discovered some additional new evidence consisting in the
attorney, said help consisting in guiding her thumb in order to affidavit of Attorney Gabino Fernando Viola wherein the latter
place the mark between her name and surname, after she herself affirms that Victorio Payad had called him on September 5, 1933,
had moistened the tip of her thumb with which she made such to prepare the will of the deceased but he did not do so because
mark, on the ink pad which was brought to her for said purpose. after seeing her he had been convinced that she could not make a
Said attorney later signed the three pages of the will in the will because she had lost her speech and her eyes were already
presence of the testatrix and also of Pedro L. Cruz, and Jose closed.
Ferrer Cruz and Perfecto L. Ona, who, in turn, forthwith signed it
successively and exactly under the same circumstances above
stated. The affidavits of Attorneys Jose Cortes and Gabino Fernando
Viola, substantially affirming the facts alleged by the oppositor,
are attached to both motions for a new trial.
In support of her claim that the testatrix did not place her
thumbmark on the will on September 7, 1983, and that she never
made said will because she was no longer physically or mentally The affidavits of Attorneys Jose Cortes and Gabino Fernando
in a condition do so, the oppositor cites the testimony of Julian Viola are not and cannot be newly discovered evidence, and are
Rodriguez, Gliceria Quisonia, Paz de Leon and her own. not admissible to warrant the holding of a new trial, because the
6

oppositor had been informed of the facts affirmed by Attorney Mr. PANIS: I request Your Honor to reserve us the right to call the
Jose Cortes in his affidavit long before this case was decided by witness, Mr. Viola, without prejudice to the other party's calling
this court. It is stated in said affidavit that in May, 1935, Attorney the witness it may wish to call.
Jose Cortes revealed to the attorney for oppositor the fact that
the deceased had left a letter whereby she transferred all her
COURT: The court reserves to the oppositor its right to call
property to Teodoro R. Yangco, and the judgment was rendered
Attorney Viola to the witness stand.
only on January 15, 1936, or eight months later.

If, after all, the oppositor did not decide to call Attorney Viola to
The oppositor contends that she had no reason to inform the
testify as a witness in her favor, it might have been because she
court of said newly discovered evidence inasmuch as the
considered his testimony unimportant and unnecessary, and at
judgment of the lower court was favorable to her. She, however,
the present stage of the proceedings, it is already too late to claim
overlooks the fact that she also appealed from the decision of the
that what said attorney may now testify is a newly discovered
lower court and it was her duty, under the circumstances, to
evidence.
inform this court of the discovery of said allegedly newly
discovered evidence and to take advantage of the effects thereof
because, by so doing, she could better support her claim that the For the foregoing considerations, those stated by this court in the
testatrix made no will, much less the will in question. Said original decision, and the additional reason that, as held in the
evidence, is not new and is not of the nature of that which gives case of Chung Kiat vs. Lim Kio (8 Phil., 297), the right to a new
rise to a new trial because, under the law, in order that evidence trial on the ground of newly discovered evidence is limited to
may be considered newly discovered evidence and may serve as ordinary cases pending in this court on bills of exceptions, the
a ground for a new trial, it is necessary (a) that it could not have motion for reconsideration and a new trial filed by the oppositor
been discovered in time, even by the exercise of due diligence; are hereby denied, ordering that the record be remanded
(b) that it be material, and (c) that it also be of such a character as immediately to the lower court. So ordered.
probably to change the result if admitted (section 497, Act No.
190; Banal vs. Safont, 8 Phil., 276).

The affidavit of Attorney Cortes is neither material nor important


in the sense that, even considering it newly discovered evidence,
it will be sufficient to support the decision of the lower court and
modify that of this court. It is simply hearsay or, at most,
corroborative evidence. The letter of the deceased Leoncia
Tolentino to Teodoro R. Yangco would, in the eyes of the law, be
considered important or material evidence but this court has not
the letter in question before it, and no attempt was ever made to
present a copy thereof.

The affidavit of Attorney Gabino Fernando Viola or testimony he


may give pursuant thereto is not more competent than that of
Attorney Jose Cortes because, granting that when he was called
by Victorio Payad to help the deceased Leoncia Tolentino to make
her will and he went to her house on September 5, 1933, the
deceased was almost unconscious, was unintelligible and could
not speak, it does not necessarily mean that on the day she made
her will, September 7, 1933, she had not recovered
consciousness and all her mental faculties to capacitate her to
dispose of all her property. What Attorney Gabino Fernando Viola
may testify pursuant to his affidavit in question is not and can not
be newly discovered evidence of the character provided for by
law, not only because it does not exclude the possibility that
testatrix had somewhat improved in health, which possibility
became a reality at the time she made her will because she was
then in the full enjoyment of her mental faculties, according to the
testimony of Pedro L. Cruz, Jose Ferrer Cruz, Perfecto L. Ona,
Victorio Payad and Marciano Almario, but also because during
the hearing of these proceedings in the Court of First Instance,
Attorney Viola was present, and the oppositor then could have
very well called him to the witness stand, inasmuch as her
attorney already knew what Attorney Viola was to testify about,
yet she did not call him. The last fact is shown by the following
excerpt from pages 148 to 150 of the transcript:

Mr. PANIS (attorney for the oppositor, addressing the court): Your
Honor, I should like to present as the last witness Attorney
Fernando Viola who was called by the petitioner Victoria Payad to
prepare the will of the deceased in his favor on September 5,
1933.

COURT: But, Mr. Panis, are you going to testify for Attorney
Fernando Viola? Mr. PANIS: No, Your Honor.

COURT: Well, where is that attorney? Where is that witness whom


you wish to call to the witness stand? Mr. PANIS: Your Honor,
he is busy in the branch, presided over by Judge Sison.

COURT: And when can he come? Mr. PANIS. I am now going to


find out, Your Honor. If the other party, Your Honor, is willing to
admit what said witness is going to testify in the sense that said
Attorney Fernando Viola went to the house of the deceased on
September 5, 1933, for the purpose of talking to the deceased to
draft the will upon petition of Mr. Victorio Payad; if the other party
admits that, then I am going waive the presentation of the witness
Mr. Fernando Viola.

Mr. ALMARIO (attorney for the petitioner): We cannot admit that.

COURT: The court had already assumed beforehand that the


other party would not admit that proposition.
7

G.R. No. L-10907 June 29, 1957 deposited in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on July
10, 1956, petitioner instituted the present action against Judge
AUREA MATIAS, petitioner,
Gonzales, and Victorina Salud and Ramon Plata, for the purpose
vs.
of annulling the above mentioned orders of respondent Judge,
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.
upon the ground that the same had been issued with grave abuse
of discretion amounting to lack or excess of jurisdiction.
CONCEPCION, J.:
In support of this pretense, it is argued that petitioner should
Petitioner Aurea Matias seeks a writ of certiorari to annul certain have preference in the choice of special administratrix of the
orders of Hon. Primitivo L. Gonzales, as Judge of the Court of estate of the decedent, she (petitioner) being the universal
First Instance of Cavite, in connection with Special Proceedings heiress to said estate and, the executrix appointed in the alleged
No. 5213 of said court, entitled "Testate Estate of the Deceased will of the deceased, that until its final disallowance which has
Gabina Raquel." not, as yet, taken place she has a special interest in said estate,
which must be protected by giving representation thereto in the
management of said estate; that, apart from denying her any such
On May 15, 1952, Aurea Matias initiated said special proceedings
representation, the management was given to persons partial to
with a petition for the probate of a document purporting to be the her main opponent, namely, Basilia Salud, inasmuch as Victorina
last will and testament of her aunt, Gabina Raquel, who died Salud is allied to her and Ramon Plata is a very close friend of
single on May 8, 1952, at the age of 92 years. The heir to the entire
one of her (Basilia Salud's) attorneys; that Basilia Salud was
estate of the deceased except the properties bequeathed to her made special administratrix despite her obvious unfitness for
other niece and nephews, namely, Victorina Salud, Santiago said office, she being over eighty (80) years of age and blind; that
Salud, Policarpio Salud, Santos Matias and Rafael Matias is,
said disability is borne out by the fact that on March 17, 1956,
pursuant to said instrument, Aurea Matias, likewise, appointed Basilia Salud resigned as special administratrix upon such
therein as executrix thereof, without bond. Basilia Salud, a first ground; that the Rules of Court do not permit the appointment of
cousin of the deceased, opposed the probate of her alleged will,
more than one special administrator; that Horacio Rodriguez was
and, after appropriate proceedings, the court, presided over by removed without giving petitioner a chance to be heard in
respondent Judge, issued an order, dated February 8, 1956, connection therewith; and that Ramon Plata and Victorina Salud
sustaining said opposition and denying the petition for probate. were authorized to collect the rents due to the deceased and the
Subsequently, Aurea Matias brought the matter on appeal to this produce of her lands, as well to sell her palay, without previous
Court (G.R. No. L-10751), where it is now pending decision. notice to the petitioner herein.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the Upon the other hand, respondents maintain that respondent
dismissal of Horacio Rodriguez, as special administrator of the
Judge acted with the scope of his jurisdiction and without any
estate of the deceased, and the appointment, in his stead of abuse of discretion; that petitioner can not validly claim any
Ramon Plata. The motion was set for hearing on February 23, special interest in the estate of the deceased, because the
1956, on which date the court postponed the hearing to February
probate of the alleged will and testament of the latter upon
27, 1956. Although notified of this order, Rodriguez did not appear which petitioner relies has been denied; that Horacio
on the date last mentioned. Instead, he filed an urgent motion Rodriguez was duly notified of the proceedings for his removal;
praying for additional time within which to answer the charges
and that Victorina Salud and Ramon Plata have not done anything
preferred against him by Basilia Salud and for another that would warrant their removal.
postponement of said hearing. This motion was not granted, and
Basilia Salud introduced evidence in support of said charges,
whereupon respondent Judge by an order, dated February 27, Upon a review of the record, we find ourselves unable to sanction
1956, found Rodriguez guilty of abuse of authority and gross fully the acts of respondent Judge, for the following reasons:
negligence, and, accordingly, relieved him as special
administrator of the estate of the deceased and appointed Basilia
1. Although Horacio Rodriguez had notice of the hearing of the
Salud as special administratrix thereof, to "be assisted and
motion for his removal, dated February 17, 1956, the record
advised by her niece, Miss Victorina Salud," who "shall always
shows that petitioner herein received copy of said motion of
act as aide, interpreter and adviser of Basilia Salud." Said order,
February 24, 1956, or the date after that set for the hearing
likewise, provided that "Basilia Salud shall be helped by Mr.
thereof. Again, notice of the order of respondent Judge, dated
Ramon Plata . . . who is hereby appointed as co-administrator."
February 23, 1956, postponing said hearing to February 27, 1956,
was not served on petitioner herein.
On March 8, 1956, Aurea Matins asked that said order of February
27, 1956, be set aside and that she be appointed special co-
2. In her motion of February 17, 1956, Basilia Salud prayed for the
administratrix, jointly with Horacio Rodriguez, upon the ground
dismissal of Horacio Rodriguez, and the appointment of Ramon
that Basilia Salud is over eighty (80) years of age, totally blind and
Plata, as special administrator of said estate. Petitioner had,
physically incapacitated to perform the duties of said office, and
therefore, no notice that her main opponent, Basilia Salud, and
that said movant is the universal heiress of the deceased and the
the latter's principal witness, Victorina Salud, would be
person appointed by the latter as executrix of her alleged will.
considered for the management of said. As a consequence, said
This motion was denied in an order dated March 10, 1956, which
petitioner had no opportunity to object to the appointment of
maintained "the appointment of the three above named persons"
Basilia Salud as special administratrix, and of Victorina Salud, as
Basilia Salud, Ramon Plata and Victorina Salud "for the
her assistant and adviser, and the order of February 27, 1956, to
management of the estate of the late Gabina Raquel pending final
this effect, denied due process to said petitioner.
decision on the probate of the alleged will of said decedent."

3. Said order was issued with evident knowledge of the physical


However, on March 17, 1956, Basilia Salud tendered her
disability of Basilia Salud. Otherwise respondent Judge would not
resignation as special administratrix by reason of physical
have directed that she "be assisted and advised by her niece
disability, due to old age, and recommended the appointment, in
Victorina Salud," and that the latter "shall always act as aide,
her place, of Victorina Salud. Before any action could be taken
interpreter and adviser of Basilia Salud."
thereon, or on March 21, 1956, Aurea Matias sought a
reconsideration of said order of March 10, 1956. Moreover, on
March 24, 1956, she expressed her conformity to said resignation, 4. Thus, respondent Judge, in effect, appointed three (3) special
but objected to the appointment, in lieu of Basilia Salud, of administrators Basilia Salud, Victorina Salud and Ramon Plata.
Victorina Salud, on account of her antagonism to said Aurea Indeed, in the order of March 10, 1956, respondent Judge
Matias she (Victorina Salud) having been the principal and maintained "the appointment of the three (3) above-named
most interested witness for the opposition to the probate of the persons for the management of the estate of the late Gabina
alleged will of the deceased and proposed that the Raquel."
administration of her estate be entrusted to the Philippine
National Bank, the Monte de Piedad, the Bank of the Philippine
5. Soon after the institution of said Special Proceedings No. 5213,
Islands, or any other similar institution authorized by law therefor,
an issue arose between Aurea Matias and Basilia Salud regarding
should the court be reluctant to appoint the movant as special
the person to be appointed special administrator of the estate of
administratrix of said estate. This motion for reconsideration was
the deceased. The former proposed Horacio Rodriguez, whereas
denied on March 26, 1956.
the latter urged the appointment of Victorina Salud. By an order
dated August 11, 1952, the Court, then presided over by Hon.
Shortly afterwards, or on June 18, 1956, respondents Ramon Jose Bernabe, Judge, decided the matter in favor of Horacio
Plata and Victorina Salud requested authority to collect the rents Rodriguez and against Victorina Salud, upon the ground that,
due, or which may be due, to the estate of the deceased and to unlike the latter, who, as a pharmacist and employee in the Santa
collect all the produce of her lands, which was granted on June Isabel Hospital, resides In the City of Manila, the former, a
23, 1956. On June 27, 1956, said respondents filed another motion practicing lawyer and a former public prosecutor, and later,
praying for permission to sell the palay of the deceased then mayor of the City of Cavite, is a resident thereof. In other words,
8

the order of resident thereof. In other words, the order of


respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate,
amounted to a reversal of the aforementioned order of Judge
Bernabe of August 11, 1952.

6. Although the probate of the alleged will and testament of


Gabina Raquel was denied by respondent Judge, the order to this
effect is not, as yet, final and executory. It is pending review on
appeal taken by Aurea Matias. The probate of said alleged will
being still within realm of legal possibility, Aurea Matias has as
the universal heir and executrix designated in said instrument
a special interest to protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this
Court held that a widow, designated as executrix in the alleged
will and testament of her deceased husband, the probate of which
had denied in an order pending appeal, "has . . . the same
beneficial interest after the decision of the court disapproving the
will, which is now pending appeal, because the decision is not yet
final and may be reversed by the appellate court."

7. The record shows that there are, at least two (2) factions among
the heirs of the deceased, namely, one, represented by the
petitioner, and another, to which Basilia Salud and Victorina
Salud belong. Inasmuch as the lower court had deemed it best to
appoint more than one special administrator, justice and equity
demands that both factions be represented in the management of
the estate of the deceased.

The rule, laid down in Roxas vs. Pecson (supra), to the effect that
"only one special administrator may be appointed to
administrator temporarily" the estate of the deceased, must be
considered in the light of the facts obtaining in said case. The
lower court appointed therein one special administrator for some
properties forming part of said estate, and a special administratrix
for other properties thereof. Thus, there were two (2) separate and
independent special administrators. In the case at bar there is
only one (1) special administration, the powers of which shall be
exercised jointly by two special co-administrators. In short, the
Roxas case is not squarely in point. Moreover, there are
authorities in support of the power of courts to appoint several
special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison
vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49;
Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set


aside. The lower court should re-hear the matter of removal of
Horacio Rodriguez and appointment of special administrators,
after due notice to all parties concerned, for action in conformity
with the views expressed herein, with costs against respondents
Victorina Salud and Ramon Plata. It is so ordered.
9

G.R. No. L-4067 November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased.


ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.

Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.


Faustino B. Tobia, Juan I. Ines and Federico Tacason for
respondents.

PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals


disallowing the will of Antero Mercado dated January 3, 1943. The
will is written in the Ilocano dialect and contains the following
attestation clause:

We, the undersigned, by these presents to declare that the


foregoing testament of Antero Mercado was signed by himself
and also by us below his name and of this attestation clause and
that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in
Ilocano dialect which is spoken and understood by the testator,
and it bears the corresponding number in letter which compose
of three pages and all them were signed in the presence of the
testator and witnesses, and the witnesses in the presence of the
testator and all and each and every one of us witnesses.

In testimony, whereof, we sign this statement, this the third day of


January, one thousand nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA (Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier


who wrote the name of Antero Mercado, followed below by "A
reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his
name. The Court of Appeals, reversing the judgement of the Court
of First Instance of Ilocos Norte, ruled that the attestation clause
failed (1) to certify that the will was signed on all the left margins
of the three pages and at the end of the will by Atty. Florentino
Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify
that after the signing of the name of the testator by Atty. Javier at
the former's request said testator has written a cross at the end of
his name and on the left margin of the three pages of which the
will consists and at the end thereof; (3) to certify that the three
witnesses signed the will in all the pages thereon in the presence
of the testator and of each other.

In our opinion, the attestation clause is fatally defective for failing


to state that Antero Mercado caused Atty. Florentino Javier to
write the testator's name under his express direction, as required
by section 618 of the Code of Civil Procedure. The herein
petitioner (who is appealing by way of certiorari from the decision
of the Court of Appeals) argues, however, that there is no need
for such recital because the cross written by the testator after his
name is a sufficient signature and the signature of Atty.
Florentino Javier is a surplusage. Petitioner's theory is that the
cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55
Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76
Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.

It is not here pretended that the cross appearing on the will is the
usual signature of Antero Mercado or even one of the ways by
which he signed his name. After mature reflection, we are not
prepared to liken the mere sign of the cross to a thumbmark, and
the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine


there is a sufficient recital in the attestation clause as to the
signing of the will by the testator in the presence of the
witnesses, and by the latter in the presence of the testator and of
each other.

Wherefore, the appealed decision is hereby affirmed, with against


the petitioner. So ordered. G.R. No. L-6285 February 15,
1912
10

PEDRO BARUT, petitioner-appellant, From these provisions it is entirely clear that, with respect to
vs. the validity of the will, it is unimportant whether the person who
FAUSTINO CABACUNGAN, ET AL., opponents-appellees. writes the name of the testatrix signs his own or not. The
important thing is that it clearly appears that the name of the
testatrix was signed at her express direction in the presence of
MORELAND, J.:
three witnesses and that they attested and subscribed it in her
presence and in the presence of each other. That is all the statute
This case is closely connected with the case of Faustino requires. It may be wise as a practical matter that the one who
Cabacungan vs. Pedro Barut and another, No. 6284,1 just decided signs the testator's name signs also his own; but that it is not
by this court, wherein there was an application for the probate of essential to the validity of the will. Whether one parson or another
an alleged last will and testament of the same person the probate signed the name of the testatrix in this case is absolutely
of whose will is involved in this suit. unimportant so far as the validity of her will is concerned. The
plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay down, is absolutely unnecessary
This appeal arises out of an application on the part of Pedro Barut under the law; and the reasons underlying the provisions of the
to probate the last will and testament of Maria Salomon, statute relating to the execution of wills do not in any sense
deceased. It is alleged in the petition of the probate that Maria
require such a provision. From the standpoint of language it is an
Salomon died on the 7th day of November, 1908, in the pueblo of impossibility to draw from the words of the law the inference that
Sinait, Ilocos Sur, leaving a last will and testament bearing date the persons who signs the name of the testator must sign his own
March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino
name also. The law requires only three witnesses to a will, not
Ragasa, and A. M. Jimenez are alleged to have been witnesses to four.
the execution thereof. By the terms of said will Pedro Barut
received the larger part of decedent's property.
Nor is such requirement found in any other branch of the law. The
name of a person who is unable to write may be signed by
The original will appears on page 3 of the record and is in the another by express direction to any instrument known to the law.
Ilocano dialect. Its translation into Spanish appears at page 11.
There is no necessity whatever, so far as the validity of the
After disposing of her property the testatrix revoked all former instrument is concerned, for the person who writes the name of
wills by her made. She also stated in said will that being unable to the principal in the document to sign his own name also. As a
read or write, the same had been read to her by Ciriaco matter of policy it may be wise that he do so inasmuch as it would
Concepcion and Timotea Inoselda and that she had instructed give such intimation as would enable a person proving the
Severo Agayan to sign her name to it as testatrix. document to demonstrate more readily the execution by the
principal. But as a matter of essential validity of the document, it
The probate of the will was contested and opposed by a number is unnecessary. The main thing to be established in the execution
of the relatives of the deceased on various grounds, among them of the will is the signature of the testator. If that signature is
that a later will had been executed by the deceased. The will proved, whether it be written by himself or by another at his
referred to as being a later will is the one involved in case No. request, it is none the less valid, and the fact of such signature
6284 already referred to. Proceeding for the probate of this later can be proved as perfectly and as completely when the person
will were pending at the time. The evidence of the proponents and signing for the principal omits to sign his own name as it can
of the opponents was taken by the court in both cases for the when he actually signs. To hold a will invalid for the lack of the
purpose of considering them together. signature of the person signing the name of the principal is, in the
particular case, a complete abrogation of the law of wills, as it
rejects and destroys a will which the statute expressly declares is
In the case before us the learned probate court found that the will valid.
was not entitled to probate upon the sole ground that the
handwriting of the person who it is alleged signed the name of the
testatrix to the will for and on her behalf looked more like the There have been cited three cases which it is alleged are in
handwriting of one of the other witnesses to the will than that of opposition to the doctrine which we have herein laid down. They
the person whose handwriting it was alleged to be. We do not are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
believe that the mere dissimilarity in writing thus mentioned by Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one
the court is sufficient to overcome the uncontradicted testimony of these cases is in point. The headnote in the case last above
of all the witnesses to the will that the signature of the testatrix stated gives an indication of what all of cases are and the
was written by Severo Agayan at her request and in her presence question involved in each one of them. It says:
and in the presence of all the witnesses to the will. It is immaterial
who writes the name of the testatrix provided it is written at her The testatrix was not able to sign it for her. Instead of writing her
request and in her presence and in the presence of all the name he wrote his own upon the will. Held, That the will was not
witnesses to the execution of the will.
duly executed.

The court seems , by inference at least, to have had in mind that All of the above cases are precisely of this character. Every one
under the law relating to the execution of a will it is necessary
of them was a case in which the person who signed the will for
that the person who signs the name of the testatrix must the testator wrote his own name to the will instead of writing that
afterwards sign his own name; and that, in view of the fact that, in of the testator, so that the testator's name nowhere appeared
the case at bar, the name signed below that of the testatrix as the
attached to the will as the one who executed it. The case of Ex
person who signed her name, being, from its appearance, not the parte Arcenas contains the following paragraph:
same handwriting as that constituting the name of the testatrix,
the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do Where a testator does not know, or is unable for any reason, to
not believe that this contention can be sustained. Section 618 of sign the will himself, it shall be signed in the following manner:
the Code of Civil Procedure reads as follows: "John Doe, by the testator, Richard Roe;" or in this form: "By the
testator. John Doe, Richard Roe." All this must be written by the
witness signing at the request of the testator.
No will, except as provided in the preceding section, shall be valid
to pass any estate, real or personal, nor charge or effect the
same, unless it be in writing and signed by the testator, or by the The only question for decision in that case, as we have before
testator's name written by some other person in his presence, stated, was presented by the fact that the person who was
and by his expenses direction, and attested and subscribed by authorized to sign the name of the testator to the will actually
three or more credible witnesses in the presence of the testator failed to sign such name but instead signed his own thereto. The
and of each. . . . decision in that case related only to that question.

This is the important part of the section under the terms of which Aside from the presentation of an alleged subsequent will the
the court holds that the person who signs the name of the contestants in this case have set forth no reason whatever why
testator for him must also sign his own name The remainder of the will involved in the present litigation should not be probated.
the section reads: The due and legal execution of the will by the testatrix is clearly
established by the proofs in this case. Upon the facts, therefore,
the will must be probated. As to the defense of a subsequent will,
The attestation shall state the fact that the testator signed the will,
that is resolved in case No. 6284 of which we have already
or caused it to be signed by some other person, at his express spoken. We there held that said later will not the will of the
direction, in the presence of three witnesses, and that they deceased.
attested and subscribed it in his presence and in the presence of
each other. But the absence of such form of attestation shall not
render the will invalid if it is proven that the will was in fact signed The judgment of the probate court must be and is hereby
and attested as in this section provided. reversed and that court is directed to enter an order in the usual
form probating the will involved in this litigation and to proceed
with such probate in accordance with law.
11

G.R. No. L-5971 February 27, 1911 Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.

CARSON, J.:

The only question raised by the evidence in this case as to the


due execution of the instrument propounded as a will in the court
below, is whether one of the subscribing witnesses was present
in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their
signatures; or whether at that time he was outside, some eight or
ten feet away, in a large room connecting with the smaller room
by a doorway, across which was hung a curtain which made it
impossible for one in the outside room to see the testator and the
other subscribing witnesses in the act of attaching their
signatures to the instrument.

A majority of the members of the court is of opinion that this


subscribing witness was in the small room with the testator and
the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course,
disposes of the appeal and necessitates the affirmance of the
decree admitting the document to probate as the last will and
testament of the deceased.

The trial judge does not appear to have considered the


determination of this question of fact of vital importance in the
determination of this case, as he was of opinion that under the
doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Rep., 541) the alleged fact that one of the subscribing witnesses
was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been
proven, would not be sufficient in itself to invalidate the execution
of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room
at the time when the testator and the other subscribing witnesses
attached their signatures to the instrument in the inner room, it
would have been invalid as a will, the attaching of those
signatures under circumstances not being done "in the presence"
of the witness in the outer room. This because the line of vision
from this witness to the testator and the other subscribing
witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of
inscription of each signature."

In the case just cited, on which the trial court relied, we held that:

The true test of presence of the testator and the witnesses in the
execution of a will is not whether they actually saw each other
sign, but whether they might have been seen each other sign, had
they chosen to do so, considering their mental and physical
condition and position with relation to each other at the moment
of inscription of each signature.

But it is especially to be noted that the position of the parties with


relation to each other at the moment of the subscription of each
signature, must be such that they may see each other sign if they
choose to do so. This, of course, does not mean that the testator
and the subscribing witnesses may be held to have executed the
instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment,
without changing their relative positions or existing conditions.

The evidence in the case relied upon by the trial judge discloses
that "at the moment when the witness Javellana signed the
document he was actually and physically present and in such
position with relation to Jaboneta that he could see everything
that took place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so."
And the decision merely laid down the doctrine that the question
whether the testator and the subscribing witnesses to an alleged
will sign the instrument in the presence of each other does not
depend upon proof of the fact that their eyes were actually cast
upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes
in the proper direction they could have seen each other sign. To
extend the doctrine further would open the door to the possibility
of all manner of fraud, substitution, and the like, and would defeat
the purpose for which this particular condition is prescribed in
the code as one of the requisites in the execution of a will.

The decree entered by the court below admitting the instrument


propounded therein to probate as the last will and testament of
12

G.R. No. L-7179 June 30, 1955 Upon the other hand, the discrepancies in the testimony of the
instrumental witnesses urged upon us by the contestant-
appellant, concerning the presence or absence of Aurelio
Testate Estate of the Late Apolinaria Ledesma. FELICIDAD Montinola at the signing of the testament or of the codicil, and the
JAVELLANA, petitioner-appellee, identity of the person who inserted the date therein, are not
vs. material and are largely imaginary, since the witness Mrs. Tabiana
DOA MATEA LEDESMA, oppositor-appellant. confessed inability to remember all the details of the transaction.
Neither are we impressed by the argument that the use of some
REYES, J.B.L., J.: Spanish terms in the codicil and testament (like legado, partes
iguales, plena propiedad) is proof that its contents were not
understood by the testatrix, it appearing in evidence that those
By order of July 23, 1953, the Court of First Instance of Iloilo terms are of common use even in the vernacular, and that the
admitted to probate the documents in the Visayan dialect, marked deceased was a woman of wide business interests.
Exhibits D and E, as the testament and codicil duly executed by
the deceased Da. Apolinaria Ledesma Vda. de Javellana, on
March 30, 1950, and May 29, 1952, respectively, with Ramon The most important variation noted by the contestants concerns
Tabiana, Gloria Montinola de Tabiana and Vicente Yap as that signing of the certificate of acknowledgment (in Spanish)
witnesses. The contestant, Da. Matea Ledesma, sister and nearest appended to the Codicil in Visayan, Exhibit E. Unlike the
surviving relative of said deceased, appealed from the decision, testament, this codicil was executed after the enactment of the
insisting that the said exhibits were not executed in conformity new Civil Code, and, therefore, had to be acknowledged before a
with law. The appeal was made directly to this Court because the notary public (Art. 806). Now, the instrumental witnesses (who
value of the properties involved exceeded two hundred thousand happen to be the same ones who attested the will of 1950)
pesos. asserted that after the codicil had been signed by the testatrix
and the witnesses at the San Pablo Hospital, the same was signed
and sealed by notary public Gimotea on the same occasion. On
Originally the opposition to the probate also charged that the the other hand, Gimotea affirmed that he did not do so, but
testatrix lacked testamentary capacity and that the dispositions brought the codicil to his office, and signed and sealed it there.
were procured through undue influence. These grounds were The variance does not necessarily imply conscious perversion of
abandoned at the hearing in the court below, where the issue was truth on the part of the witnesses, but appears rather due to a
concentrated into three specific questions: (1) whether the well-established phenomenon, the tendency of the mind, in
testament of 1950 was executed by the testatrix in the presence of recalling past events, to substitute the usual and habitual for what
the instrumental witnesses; (2) whether the acknowledgment differs slightly from it (II Moore on Facts, p. 878; The Ellen
clause was signed and the notarial seal affixed by the notary McGovern, 27 Fed. 868, 870).
without the presence of the testatrix and the witnesses; and (3) if
so, whether the codicil was thereby rendered invalid and
ineffective. These questions are the same ones presented to us At any rate, as observed by the Court below, whether or not the
for resolution. notary signed the certification of acknowledgment in the
presence of the testatrix and the witnesses, does not affect the
validity of the codicil. Unlike the Code of 1889 (Art. 699), the new
The contestant argues that the Court below erred in refusing Civil Code does not require that the signing of the testator,
credence to her witnesses Maria Paderogao and Vidal Allado, witnesses and notary should be accomplished in one single act.
cook and driver, respectively, of the deceased Apolinaria A comparison of Articles 805 and 806 of the new Civil Code
Ledesma. Both testified that on March 30, 1950, they saw and reveals that while testator and witnesses sign in the presence of
heard Vicente Yap (one of the witnesses to the will) inform the each other, all that is thereafter required is that "every will must
deceased that he had brought the "testamento" and urge her to be acknowledged before a notary public by the testator and the
go to attorney Tabiana's office to sign it; that Da. Apolinaria witnesses" (Art. 806); i.e., that the latter should avow to the
manifested that she could not go, because she was not feeling certifying officer the authenticity of their signatures and the
well; and that upon Yap's insistence that the will had to be signed voluntariness of their actions in executing the testamentary
in the attorney's office and not elsewhere, the deceased took the disposition.
paper and signed it in the presence of Yap alone, and returned it
with the statement that no one would question it because the
property involved was exclusively hers. This was done in the case before us. The subsequent signing and
sealing by the notary of his certification that the testament was
duly acknowledged by the participants therein is no part of the
Our examination of the testimony on record discloses no grounds acknowledgment itself nor of the testamentary act. Hence their
for reversing the trial Court's rejection of the improbable story of separate execution out of the presence of the testatrix and her
the witnesses. It is squarely contradicted by the concordant witnesses can not be said to violate the rule that testaments
testimony of the instrumental witnesses, Vicente Yap, Atty. should be completed without interruption (Andalis vs. Pulgueras,
Ramon Tabiana, and his wife Gloria Montinola, who asserted 59 Phil. 643), or, as the Roman maxim puts it, "uno codem die ac
under oath that the testament was executed by testatrix and tempore in eadem loco", and no reversible error was committed
witnesses in the presence of each other, at the house of the by the Court in so holding. It is noteworthy that Article 806 of the
decedent on General Hughes St., Iloilo City, on March 30, 1950. new Civil Code does not contain words requiring that the testator
And it is highly unlikely, and contrary to usage, that either and the witnesses should acknowledge the testament on the
Tabiana or Yap should have insisted that Da. Apolinaria, an infirm same day or occasion that it was executed.
lady then over 80 years old, should leave her own house in order
to execute her will, when all three witnesses could have easily
repaired thither for the purpose. Moreover, the cross-examination The decision admitting the will to probate is affirmed, with costs
has revealed fatal flaws in the testimony of Contestant's against appellant.
witnesses. Both claim to have heard the word "testamento" for
the first time when Yap used it; and they claimed ability to recall
that word four years later, despite the fact that the term meant
nothing to either. It is well known that what is to be remembered
must first be rationally conceived and assimilated (II Moore on
Facts, p. 884).

Likewise, Maria Paderogao was positive that Yap brought the


will, and that the deceased alone signed it, precisely on March 30,
1950; but she could remember no other date, nor give satisfactory
explanation why that particular day stuck in her mind. Worse still,
Allado claimed to have heard what allegedly transpired between
Yap and Da. Apolinaria from the kitchen of the house, that was
later proved to have been separated from the deceased's
quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard
from the kitchen. Later, on redirect examination, Allado sought to
cure his testimony by claiming that he was upstairs in a room
where the servants used to eat when he heard Yap converse with
his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's
counsel that had been previously ruled out by the trial Court.
Besides, the contradiction is hardly consonant with this witness'
18 years of service to the deceased.
13

[G.R. No. L-26615. April 30, 1970.] Rosario and children, relatives and legatees in both the 1956 and
1960 wills; Antonio Jesus de Praga and Marta Natividad de Jesus,
REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, wards of the deceased and legatees in the 1956 and 1960 wills; (3)
MARIA NATIVIDAD DE JESUS AND DR. JAIME Remedios, Encarnacion, and Eduardo, all surnamed Narciso; (4)
ROSARIO, Petitioners, v. HON. CONRADO M. VASQUEZ, as Judge Natividad del Rosario-Sarmiento; (5) Maria Narciso; (6) Pascuala
of the Court of First Instance of Manila, Branch and CONSUELO Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
GONZALES VDA. DE PRECILLA, Respondents. 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
SYLLABUS
deceased to be her true will; that the signatures of the deceased
appearing in the will was procured through undue and improper
1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; pressure and influence the part of the beneficiaries and/or other
GROUND FOR DISALLOWANCE; TESTATRIXS DEFECTIVE persons; that the testatrix did not know the object of her bounty;
EYESIGHT AS UNABLING HER TO READ THE PROVISIONS OF that the instrument itself reveals irregularities in its execution,
LATER WILL. The declarations in court of the opthalmologist as and that the formalities required by law for such execution have
to the condition of the testatrixs eyesight fully establish the fact not been complied with.
that her vision remained mainly for viewing distant objects and
not for reading print; that she was, at the time of the execution of Oppositor Lucio V. Garcia, who also presented for probate the
the second will on December 29, 1960, incapable of reading and 1956 will of the deceased, joined the group of Dr. Jaime Rosario
could not have read the provisions of the will supposedly signed in registering opposition to the appointment of petitioner
by her. Consuelo S. Gonzales Vda. de Precilla as special administratrix,
on the ground that the latter possesses interest adverse to the
2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF estate. After the parties were duly heard, the probate court, in its
THE WILL; CASE AT BAR. Upon its face, the testamentary order of 2 October 1965, granted petitioners prayer and
provisions, the attestation clause and acknowledgment were appointed her special administratrix of the estate upon a bond for
crammed together into a single sheet of paper, apparently to save P30,000.00. The order was premised on the fact the petitioner was
on space. Plainly, the testament was not prepared with any regard managing the properties belonging to the estate even during the
for the defective vision of Da. Gliceria, the typographical errors lifetime of the deceased, and to appoint another person as
remained uncorrected thereby indicating that the execution administrator or co administrator at that stage of the proceeding
thereof must have been characterized by haste. It is difficult to would only result in further confusion and difficulties.
understand that so important a document containing the final
disposition of ones worldly possessions should be embodied in On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed
an informal and untidy written instrument; or that the glaring with the probate court an urgent motion to require the Hongkong
spelling errors should have escaped her notice if she had actually & Shanghai Bank to report all withdrawals made against the funds
retained the ability to read the purported will and had done so. of the deceased after 2 September 1965. The court denied this
motion on 22 October 1965 for being premature, it being unaware
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR that such deposit in the name of the deceased existed. 1
VALIDITY; ART. 808, NEW CIVIL CODE READING OF THE WILL
TWICE TO A BLIND TESTATOR; PURPOSE. The rationale On 14 December 1965, the same sets of oppositors, Dr. Jaime
behind the requirement of reading the will to the testator if he is Rosario and children, Antonio Jesus de Praga, Natividad de
blind or incapable of reading the will himself is to make the Jesus and Fr. Lucio V. Garcia, petitioned the court for the
provisions thereof known to him, so that he may be able to object immediate removal of the special administratrix. It was their claim
if they are not in accordance with his wishes. that the special administratrix and her deceased husband,
Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT simulated and fraudulent deed of absolute sale dated 10 January
CASE. Where as in the 1960 will there is nothing in the record to 1961 allegedly conveying unto said spouses for the paltry sum of
show that the requisites of Art. 808 of the Civil Code of the P30,000.00 ownership of 3 parcels of land and the improvements
Philippines that "if the testator is blind, the will shall be read to thereon located on Quiapo and San Nicolas, Manila, with a total
him twice," have not been complied with, the said 1960 will suffer assessed value of P334,050.00. Oppositors contended that since
from infirmity that affects its due execution. 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
DECISION
administratrix, as wife and heir of Alfonso Precilla, the removal of
the said administratrix was imperative.
REYES, J.B.L., J.:
On 17 December 1965, the same oppositors prayed the court for
an order directing the Special Administratrix to deposit with the
G.R. No. L-27200 is an appeal from the order of the Court of First Clerk of Court all certificates of title belonging to the estate. It was
Instance of Manila (in Sp. Proc. No. 62618) admitting to probate alleged that on 22 October 1965, or after her appointment,
the alleged last will an, testament of the late Gliceria Avelino del petitioner Consuelo Gonzales Vda. de Precilla, in her capacity as
Rosario dated 29 December 1960. G.R. Nos. L-26615 and L-2684 special administratrix of the estate of the deceased Gliceria A. del
are separate petitions for mandamus filed by certain alleged heirs Rosario, filed with Branch IV of the Court of First Instance of
of said decedent seeking (1) to compel the probate court to Manila a motion for the issuance of new copies of the owners
remove Consuelo S. Gonzales-Precilla as special administratrix of duplicates of certain certificates of title in the name of Gliceria del
the estate, for conflict of interest, to appoint a new one in her Rosario, supposedly needed by her "in the preparation of the
stead; and (2) to order the Register of Deeds of Manila to annotate inventory" of the properties constituting the estate. The motion
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, having been granted, new copies of the owners duplicates of
registered in the name of Alfonso Precilla, married to Consuelo certificates appearing the name of Gliceria del Rosario (among
Gonzales y Narciso, and said to be properly belonging to the which were TCT Nos. 66201, 66202 and 66204) were issued on 15
estate of the deceased Gliceria A. del Rosario. November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the
Insofar as pertinent to the issues involved herein, the facts of Register of Deeds the deed of sale involving properties covered
these cases may be stated as follows:chanrob1es virtual 1aw by TCT Nos. 66201, 66202 and 66204 supposedly executed by
library Gliceria del Rosario on 10 January 1961 in favor of Alfonso
Precilla, and, in consequence, said certificates of title were
Gliceria Avelino del Rosario died unmarried in the City of Manila cancelled and new certificates (Nos. 81735, 81736 and 81737)
on 2 September 1965, leaving no descendents, ascendants, were issued in the name of Alfonso Precilla, married to Consuelo
brother or sister. At the time of her death, she was said to be 90 S. Gonzales y Narciso.
years old more or less, and possessed of an estate consisting
mostly of real properties. On 25 August 1966, the Court issued an order admitting to
probate the 1960 will of Gliceria A. del Rosario (Exhibit "D"). In
On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a declaring the due execution of the will, the probate court took
niece of the deceased, petitioned the Court of First Instance of note that no evidence had been presented to establish that the
Manila for probate of the alleged last will and testament of testatrix was not of sound mind when the will was executed; that
Gliceria A. del Rosario, executed on 29 December 1960, and for the fact that she had prepared an earlier will did not, prevent her
her appointment as special administratrix of the latters estate, from executing another one thereafter; that the fact that the 1956
said to be valued at about P100,000.00, pending the appointment will consisted of 12 pages whereas the 1960 testament was
of a regular administrator thereof. contained in one page does not render the latter invalid; that, the
erasures and alterations in the instrument were insignificant to
The petition was opposed separately by several groups of alleged warrant rejection; that the inconsistencies in the testimonies of
heirs: (1) Rev. Fr. Lucio V. Garcia, a legatee named in an earlier the instrumental witnesses which were noted by the oppositors
will executed by Gliceria A. del Rosario on 9 June 1956; (2) Jaime
14

are even indicative of their truthfulness. The probate court, also pressure or influence has been exerted by any person upon the
considering that petitioner had already shown capacity to testatrix to execute the will.
administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned Of course, the interest and active participation of Alfonso Precilla
and interested therein, appointed said petitioner regular in the signing of this 1960 will are evident from the records. The
administratrix with a bond for P50,000.00. From this order all the will appeared to have been prepared by one who is not
oppositors appealed, the case being docketed in this Court as conversant with the spelling of Tagalog words, and it has been
G.R. No. L-27200. shown that Alfonso Precilla is a Cebuano who speaks Tagalog
with a Visayan accent. 7 The witnesses to the will, two of whom
Then, on 13 September 1966, the probate court resolved the are fellow Visayans, 8 admitted their relationship or closeness to
oppositors motion of 14 December 1965 for the removal of the Precilla. 9 It was Precilla who instructed them to go to the house
then special administratrix, as follows:jgc:chanrobles.com.ph of Gliceria del Rosario on 29 December 1960 to witness an
important document, 10 and who took their residence certificates
"It would seem that the main purpose of the motion to remove the from them a few days before the will was signed. 11 Precilla had
special administratrix and to appoint another one in her stead, is met the notary public and witnesses Rosales and Lopez at the
in order that an action may be filed against the special door of the residence of the old woman; he ushered them to the
administratrix for the annulment of the deed of sale executed by room at the second floor where the signing of the document took
the decedent on January 10, 1961. Under existing documents, the place; 12 then he fetched witness Decena from the latters
properties sold pursuant to the said deed of absolute sale no haberdashery shop a few doors away and brought him to, the
longer forms part of the estate. The alleged conflict of interest is house the testatrix. 13 And when the will was actually executed
accordingly not between different claimants of the same estate. If Precilla was present. 14
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 oppositors-appellants in the present case, however,
the special administratrix be removed and that another one be challenging the correctness of the probate courts ruling,
appointed to file such action. Such a course of action would only maintain that on 29 December 1960 the eyesight of Gliceria del
produce confusion and difficulties in the settlement of the estate. Rosario was so poor and defective that she could not have read
The movants may file the aforesaid proceedings, preferably in an the provisions of the will, contrary to the testimonies of witnesses
independent action, to secure the nullity of the deed of absolute Decena, Lopez and Rosales.
even without leave of this court:"
On this point, we find the declarations in court of Dr. Jesus V.
As regard the motion of 17 December 1965 asking for the deposit Tamesis very material and illuminating. Said ophthalmologist,
in court of the titles in the name of the decedent, the same was whose expertise was admitted by both parties, testified, among
also denied, for the reason that if the movants were referring to other things, that when Doa Gliceria del Rosario saw him for
the old titles, they could no longer be produced, and if they meant consultation on 11 March 1960 he found her left eye to have
the new duplicate copies thereof that were issued at the instance cataract (opaque lens), 15 and that it was "above normal in
of the special administratrix, there would be no necessity pressure", denoting a possible glaucoma, a disease that leads to
therefor, because they were already cancelled and other blindness 16 As to the conditions of her right eye, Dr. Tamesis
certificates were issued in the name of Alfonso Precilla. This declared:jgc:chanrobles.com.ph
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. "Q But is there anything here in the entry appearing in the other
v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due documents Exhibits 3-B, 3-C and 3-D from which you could
course on 6 October 1966. inform the court as to the condition of the vision of the patient as
to the right eve?
On 15 December 1965, with that motion for removal pending in
the court, the oppositors requested the Register of Deeds of "A Under date of August 30, 1960, is the record of refraction. that
Manila to annotate a notice of lis pendens in the records of TCT is setting of glass by myself which showed that the right eye with
Nos. 81735, 81736, and 81737 in the name of Alfonso Precilla. And my prescription of glasses had a vision of 2 over 60 (20/60) and
when said official refused to do so, they applied to the probate for the left eye with her correction 20 over 300 (20/300).
court (in Sp. Proc. No. 62618) for an order to compel the Register
of Deeds to annotate a lis pendens notice in the aforementioned "Q In laymans language, Doctor, what is the significance of that
titles contending that the matter of removal and appointment of notation that the right had a degree of 20 over 60 (20/60)?
the administratrix, involving TCT Nos. 81735, 81736, and 81737,
was already before the Supreme Court. Upon denial of this motion "A It meant that eye at least would be able to recognize objects or
on 12 November 1966, oppositors filed another mandamus action, persons at a minimum distance of twenty feet.
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. "Q But would that grade enable the patient to read print?
L-26864.
"A Apparently that is only a record for distance vision, for
Foremost of the questions to be determined here concerns the distance sight, not for near."cralaw virtua1aw library
correctness of the order allowing the probate of the 1960 will.
(pages 20-21, t.s.n., hearing of 23 March 1966)
The records of the probate proceeding fully establish the fact that
the testatrix, Gliceria A. del Rosario, during her lifetime, executed The records also show that although Dr. Tamesis operated of the
two wills: one on 9 June 1956 consisting of 12 pages and written left eye of the decedent at the Lourdes Hospital on 8 August 1960;
in Spanish, a language that she knew and spoke, witnessed by as of 23 August 1960, inspite of the glasses her vision was only
Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, "counting fingers," 17 at five feet. The cross-examination of the
and acknowledged before notary public Jose Ayala; and another doctor further elicited the following
dated 29 December 1960, consisting of 1 page and written in responses:jgc:chanrobles.com.ph
Tagalog, witnessed by Messrs. Vicente Rosales, Francisco
Decena, and Francisco Lopez and acknowledged before notary "Q After she was discharged from the hospital you prescribed
public Remigio M. Tividad. lenses for her, or glasses?

Called to testify on the due execution of the 1960 will, "A After her discharge from the hospital, she was coming to my
instrumental witnesses Decena, Lopez and Rosales uniformly clinic for further examination and then sometime later glasses
declared that they were individually requested by Alfonso Precilla were prescribed.
(the late husband of petitioner special administratrix) to witness
the execution of the last will of Doa Gliceria A. del Rosario; that
x x x
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 "Q And the glasses prescribed by you enabled her to read,
"silently" by the testatrix herself before she signed it; 4 that he Doctor?
three witnesses thereafter signed the will in the presence of the
testatrix and the notary public and of one another. There is also "A As far as my record is concerned, with the glasses for the left
testimony that after the testatrix and the witnesses to the will eye which I prescribed the eye which I operated she could
acknowledged the instrument to be their voluntary act and deed, see only forms but not read. That is on the left eye.
the notary public asked for their respective residence certificates
which were handed to him by Alfonso Precilla, clipped together; 5 "Q How about the right eye?
that after comparing them with the numbers already written on
the will, the notary public filled in the blanks in the instrument "A The same, although the vision on the right eye is even better
with the date, 29 January 1960, before he affixed his signature than the left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
and seal thereto. 6 They also testified that on that occasion no
15

Then, confronted with a medical certificate (Exhibit H) issued by ability to see at normal reading distances. Writing or signing of
him on 29 November 1965 certifying that Gliceria del Rosario was ones name, when sufficiently practiced, becomes automatic, so
provided with aphakic lenses and "had been under medical that one need only to have a rough indication of the place where
supervision up to 1963 with apparently good vision", the doctor
the signature is to be affixed in order to be able to write it. Indeed,
had this to say:jgc:chanrobles.com.ph
a close examination of the checks, amplified in the photograph,
"Q When yon said that she had apparently good vision you mean Exhibit "O", et seq., reinforces the contention of oppositors that
that she was able to read? the alleged testatrix could not see at normal reading distance: the
signatures in the checks are written far above the printed base,
"A No, not necessarily, only able to go around, take care of lines, and the names of the payees as well as the amounts written
herself and see. This I can tell you, this report was made on pure do not appear to be in the handwriting of the alleged testatrix,
recollections and I recall she was using her glasses although I
being in a much firmer and more fluid hand than hers.
recall also that we have to give her medicines to improve her
vision, some medicines to improve her identification some more.
Thus, for all intents and purpose of the rules on probate, the
deceased Gliceria del Rosario was, as appellant oppositors
x x x
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.

"Q What about the vision in the right eve, was that corrected by "ART. 808. If the testator is blind, the will shall be read to him
the glasses? twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged."cralaw
"A Yes, with the new prescription which I issued on 80 August virtua1aw library
1960. It is in the clinical record.
The rationale behind the requirement of reading the will to the
"Q The vision in the right eye was corrected? 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
"A Yes That is the vision for distant objects."cralaw virtua1aw to him, so that he may be able to object if they are not in
library accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and
(pages 38, 39, 40. t.s.n., hearing of 23 March 1966). understood by the handicapped testator, thus making them truly
reflective of his desire, is evidenced by the requirement that the
The foregoing testimony of the ophthalmologist who treated the will should be read to the latter, not only once but twice, by two
deceased and, therefore, has first hand knowledge of the actual different persons, and that the witnesses have to act within the
condition of her eyesight from August, 1960 up to 1963, fully range of his (the testators) other senses. 19
establish the fact that notwithstanding the operation and removal
of the cataract in her left eye and her being fitted with aphakic In connection with the will here in question, there is nothing in the
lens (used by cataract patients), her vision remained mainly for records to show that the above requisites have been complied
viewing distant objects and not for reading print. Thus, the with. Clearly, as already stated, the 1960 will sought to be
conclusion is inescapable that with the condition of her eyesight probated suffers from infirmity that affects its due execution.
in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, We also find merit in the complaint of oppositors Lucio V. Garcia,
and could not have read the provisions of the will supposedly Et Al., against the denial by the probate court of their petition for
signed by her on 29 December 1960. It is worth noting that the the removal of Consuelo Gonzales Vda. de Precilla as special
instrumental witnesses stated that she read the instrument administratrix of the estate of the deceased Doa Gliceria
"silently" (t.s.n., pages 164-165). which is a conclusion and not a (Petition, G.R. No. L-26615, Annex "B").
fact.
The oppositors petition was based allegedly on the existence in
Against the background of defective eyesight of the alleged the special administratrix of an interest adverse to that of the
testatrix, the appearance of the will, Exhibit "D", acquires striking estate. It was their contention that through fraud her husband had
significance. Upon its face, the testamentary provisions, the caused the deceased Gliceria del Rosario to execute a deed of
attestation clause and acknowledgment were crammed together sale, dated 10 January 1961, by virtue of which the latter
into a single sheet of paper, to much so that the words had to be purportedly conveyed unto said Alfonso D. Precilla, married to
written very close on the top, bottom and two sides of the paper, Consuelo Gonzales y Narciso, the ownership of 3 parcels of land
leaving no margin whatsoever; the word "and" had to be written and the improvements thereon, assessed at P334,050.00, for the
by the symbol" &", apparently to save on space. Plainly, the sum of P30,000.00.
testament was not prepared with any regard for the defective
vision of Doa Gliceria. Further, typographical errors like In denying the petition, the probate court, in its order of 13
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", September 1966 (Annex "P", Petition) reasoned out that since the
"MERCRDRS" for MERCEDES", "instrumental" for "Instrumental", properties were already sold no longer form part of the estate.
and "acknowledged" for "acknowledge, remained uncorrected, The conflict of interest would not be between the estate and third
thereby indicating that execution thereof must have been parties, but among the different claimants of said properties, in
characterized by haste. It is difficult to understand that so which case, according to the court, the participation of the special
important a document containing the final disposition of ones administratrix in the action for annulment that may be brought
worldly possessions should be embodied in an informal and would not be necessary.
untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the The error in this line of reasoning lies in the fact that what was
ability to read the purported will and had done so. The record is being questioned was precisely the validity of the conveyance or
thus convincing that the supposed testatrix could not have sale of the properties. In short, if proper, the action for annulment
physically read or understood the alleged testament, Exhibit "D", would have to be undertaken on behalf of the estate by the
and that its admission to probate was erroneous and should be special administratrix, affecting as it does the property or rights
reversed. of the deceased. 20 For the rule is that only where there is no
special proceeding for the settlement of the estate of the
That Doa Gliceria should be able to greet her guests on her deceased may the legal heirs commence an action arising out of a
birthday, arrange flowers and attend to kitchen tasks shortly prior right belonging to their ancestor. 21
to the alleged execution of the testament Exhibit "D", as appears
from the photographs, Exhibits "E" to "E-1", in no way proves; There is no doubt that to settle the question of the due execution
that she was able to read a closely typed page, since the acts and validity of the deed of sale, an ordinary and separate action
shown do not require vision at close range. It must be would have to be instituted, the matter not falling within the
remembered that with the natural lenses removed, her eyes had competence of the probate court. 22 Considering the facts then
lost the power of adjustment to near vision, the substituted glass before it, i.e., the alleged deed of sale having been executed by
lenses being rigid and uncontrollable by her. Neither is the Gliceria del Rosario on 10 January 1961, when she was already
signing of checks (Exhibits "G" to "G-3") by her indicative of
16

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.
17

The issues now before us can be stated thus: Was Brigido


Alvarado blind for purpose of Art, 808 at the time his "Huling
G.R. No. 74695 September 14, 1993 Habilin" and its codicil were executed? If so, was the double-
reading requirement of said article complied with?

In the Matter of the Probate of the Last Will and Testament of the
Regarding the first issue, there is no dispute on the following
Deceased Brigido Alvarado, CESAR ALVARADO, petitioner,
facts: Brigido Alvarado was not totally blind at the time the will
vs.
and codicil were executed. However, his vision on both eyes was
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
only of "counting fingers at three (3) feet" by reason of the
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
glaucoma which he had been suffering from for several years and
Associate Justices, Intermediate Appellate Court, First Division
even prior to his first consultation with an eye specialist on
(Civil Cases), and BAYANI MA. RINO, respondents.
14 December 1977.

BELLOSILLO, J.:
The point of dispute is whether the foregoing circumstances
would qualify Brigido as a "blind" testator under Art. 808 which
Before us is an appeal from the Decision dated 11 April 19861 of reads:
the First Civil Cases Division of the then Intermediate Appellate
Court, now Court of Appeals, which affirmed the Order dated 27
Art. 808. If the testator is blind, the will shall be read to him twice;
June 19832 of the Regional Trial Court of Sta. Cruz, Laguna,
once, by one of the subscribing witnesses, and again, by the
admitting to probate the last will and testament3 with codicil4 of
notary public before whom the will is acknowledged.
the late Brigido Alvarado.

Petitioner contends that although his father was not totally blind
On 5 November 1977, the 79-year old Brigido Alvarado executed a
when the will and codicil were executed, he can be so considered
notarial will entitled "Huling Habilin" wherein he disinherited an
within the scope of the term as it is used in Art. 808. To support
illegitimate son (petitioner) and expressly revoked a previously
his stand, petitioner presented before the trial court a medical
executed holographic will at the time awaiting probate before
certificate issued by Dr. Salvador R. Salceda, Director of the
Branch 4 of the Regional Trial Court of sta. Cruz, Laguna.
Institute of Opthalmology (Philippine Eye Research Institute),6 the
contents of which were interpreted in layman's terms by Dr.
As testified to by the three instrumental witnesses, the notary Ruperto Roasa, whose expertise was admitted by private
public and by private respondent who were present at the respondent.7 Dr. Roasa explained that although the testator could
execution, the testator did not read the final draft of the will visualize fingers at three (3) feet, he could no longer read either
himself. Instead, private respondent, as the lawyer who drafted printed or handwritten matters as of 14 December 1977, the day of
the eight-paged document, read the same aloud in the presence his first consultation.8
of the testator, the three instrumental witnesses and the notary
public. The latter four followed the reading with their own
On the other hand, the Court of Appeals, contrary to the medical
respective copies previously furnished them.
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
Meanwhile, Brigido's holographic will was subsequently admitted "poor eyesight."9 Since the testator was still capable of reading at
to probate on 9 December 1977. On the 29th day of the same that time, the court a quo concluded that Art. 808 need not be
month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang complied with.
Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
We agree with petitioner in this respect.
some dispositions in the notarial will to generate cash for the
testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were Regardless of respondent's staunch contention that the testator
unchanged. As in the case of the notarial will, the testator did not was still capable of reading at the time his will and codicil were
personally read the final draft of the codicil. Instead, it was private prepared, the fact remains and this was testified to by his
respondent who read it aloud in his presence and in the presence witnesses, that Brigido did not do so because of his
of the three instrumental witnesses (same as those of the notarial "poor," 10 "defective," 11 or "blurred"12 vision making it necessary
will) and the notary public who followed the reading using their for private respondent to do the actual reading for him.
own copies.
The following pronouncement in Garcia vs. Vasquez 13 provides
A petition for the probate of the notarial will and codicil was filed an insight into the scope of the term "blindness" as used in Art.
upon the testator's death on 3 January 1979 by private 808, to wit:
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna.5Petitioner, in turn, filed
The rationale behind the requirement of reading the will to the
an Opposition on the following grounds: that the will sought to be
testator if he is blind or incapable of reading the will himself (as
probated was not executed and attested as required by law; that
when he is illiterate), is to make the provisions thereof known to
the testator was insane or otherwise mentally incapacitated to
him, so that he may be able to object if they are not in accordance
make a will at the time of its execution due to senility and old age;
with his wishes . . .
that the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and
influence on the part of the beneficiary who stands to get the Clear from the foregoing is that Art. 808 applies not only to blind
lion's share of the testator's estate; and lastly, that the signature testators but also to those who, for one reason or another, are
of the testator was procured by fraud or trick. "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,"
When the oppositor (petitioner) failed to substantiate the grounds
"defective," or "blurred" vision, there can be no other course for
relied upon in the Opposition, a Probate Order was issued on 27
us but to conclude that Brigido Alvarado comes within the scope
June 1983 from which an appeal was made to respondent court.
of the term "blind" as it is used in Art. 808. Unless the contents
The main thrust of the appeal was that the deceased was blind
were read to him, he had no way of ascertaining whether or not
within the meaning of the law at the time his "Huling Habilin" and
the lawyer who drafted the will and codicil did so confortably with
the codicil attached thereto was executed; that since the reading
his instructions. Hence, to consider his will as validly executed
required by Art. 808 of the Civil Code was admittedly not
and entitled to probate, it is essential that we ascertain whether
complied with, probate of the deceased's last will and codicil
Art. 808 had been complied with.
should have been denied.

Article 808 requires that in case of testators like Brigido Alvarado,


On 11 April 1986, the Court of Appeals rendered the decision
the will shall be read twice; once, by one of the instrumental
under review with the following findings: that Brigido Alvarado
witnesses and, again, by the notary public before whom the will
was not blind at the time his last will and codicil were executed;
was acknowledged. The purpose is to make known to the
that assuming his blindness, the reading requirement of Art. 808
incapacitated testator the contents of the document before
was substantially complied with when both documents were read
signing and to give him an opportunity to object if anything is
aloud to the testator with each of the three instrumental
contrary to his instructions.
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, That Art. 808 was not followed strictly is beyond cavil. Instead of
there was substantial compliance since its purpose of making the notary public and an instrumental witness, it was the lawyer
known to the testator the contents of the drafted will was served. (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.
18

Private respondent however insists that there was substantial WHEREFORE, the petition is DENIED and the assailed Decision of
compliance and that the single reading suffices for purposes of respondent Court of Appeals dated 11 April 1986 is AFFIRMED.
the law. On the other hand, petitioner maintains that the only valid Considering the length of time that this case has remained
compliance or compliance to the letter and since it is admitted pending, this decision is immediately executory. Costs against
that neither the notary public nor an instrumental witness read petitioner.
the contents of the will and codicil to Brigido, probate of the
latter's will and codicil should have been disallowed.
SO ORDERED.

We sustain private respondent's 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 the testamentary privilege. 14

In the case at bar, private respondent read the testator's 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 testator's residence
precisely for the purpose of securing his conformity to the
draft. 15

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the
three instrumental witnesses likewise read the will and codicil,
albeit silently. Afterwards, Atty. Nonia de la Pena (the notary
public) and Dr. Crescente O. Evidente (one of the three
instrumental witnesses and the testator's physician) asked the
testator whether the contents of the document 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 testator's will. 17

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


court's Probate Order and its affirmance by the Court of Appeals,
we quote the following pronouncement in Abangan
v. Abangan, 18 to wit:

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 restrain and curtail the exercise of
the right to make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's will, must be
disregarded(emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and


unmistakable terms in his "Huling Habilin" and the codicil
attached thereto. We are unwilling to cast these aside fro the
mere reason that a legal requirement intended for his protection
was not followed strictly when such compliance had been
rendered unnecessary by the fact that the purpose of the law, i.e.,
to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been
served.
19

G.R. No. L-18979 June 30, 1964 the end and in every page, it does not contain the signature of
one of the attesting witnesses, Atty. Jose V. Natividad, on page
three (3) thereof; but the duplicate copy attached to the amended
IN THE MATTER OF THE TESTATE ESTATE OF THE LATE and supplemental petition and marked as Exhibit "A-1" is signed
JOSEFA VILLACORTE. by the testatrix and her three attesting witnesses in each and
CELSO ICASIANO, petitioner-appellee, every page.
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-
appellants. The testimony presented by the proponents of the will tends to
show that the original of the will and its duplicate were
subscribed at the end and on the left margin of each and every
REYES, J.B.L., J.: page thereof by the testatrix herself and attested and subscribed
by the three mentioned witnesses in the testatrix's presence and
Appeal from an order of the Court of First Instance of Manila in that of one another as witnesses (except for the missing
admitting to probate the document and its duplicate, marked as signature of attorney Natividad on page three (3) of the original);
Exhibits "A" and "A-1", as the true last will and testament of that pages of the original and duplicate of said will were duly
Josefa Villacorte, deceased, and appointing as executor Celso numbered; that the attestation clause thereof contains all the
Icasiano, the person named therein as such. facts required by law to be recited therein and is signed by the
aforesaid attesting witnesses; that the will is written in the
language known to and spoken by the testatrix that the
This special proceeding was begun on October 2, 1958 by a attestation clause is in a language also known to and spoken by
petition for the allowance and admission to probate of the the witnesses; that the will was executed on one single occasion
original, Exhibit "A" as the alleged will of Josefa Villacorte, in duplicate copies; and that both the original and the duplicate
deceased, and for the appointment of petitioner Celso Icasiano as copies were duly acknowledged before Notary Public Jose
executor thereof. Oyengco of Manila on the same date June 2, 1956.

The court set the proving of the alleged will for November 8, 1958, Witness Natividad who testified on his failure to sign page three
and caused notice thereof to be published for three (3) (3) of the original, admits that he may have lifted two pages
successive weeks, previous to the time appointed, in the instead of one when he signed the same, but affirmed that page
newspaper "Manila chronicle", and also caused personal service three (3) was signed in his presence.
of copies thereof upon the known heirs.

Oppositors-appellants in turn introduced expert testimony to the


On October 31, 1958, Natividad Icasiano, a daughter of the effect that the signatures of the testatrix in the duplicate (Exhibit
testatrix, filed her opposition; and on November 10, 1958, she "A-1") are not genuine nor were they written or affixed on the
petitioned to have herself appointed as a special administrator, to same occasion as the original, and further aver that granting that
which proponent objected. Hence, on November 18, 1958, the the documents were genuine, they were executed through
court issued an order appointing the Philippine Trust Company as mistake and with undue influence and pressure because the
special administrator. 1wph1.t testatrix was deceived into adopting as her last will and testament
the wishes of those who will stand to benefit from the provisions
On February 18, 1959, Enrique Icasiano, a son of the testatrix, of the will, as may be inferred from the facts and circumstances
also filed a manifestation adopting as his own Natividad's surrounding the execution of the will and the provisions and
opposition to the probate of the alleged will. dispositions thereof, whereby proponents-appellees stand to
profit from properties held by them as attorneys-in-fact of the
deceased and not enumerated or mentioned therein, while
On March 19, 1959, the petitioner proponent commenced the oppositors-appellants are enjoined not to look for other
introduction of his evidence; but on June 1, 1959, he filed a properties not mentioned in the will, and not to oppose the
motion for the admission of an amended and supplemental probate of it, on penalty of forfeiting their share in the portion of
petition, alleging that the decedent left a will executed in duplicate free disposal.
with all the legal requirements, and that he was, on that date,
submitting the signed duplicate (Exhibit "A-1"), which he
allegedly found only on or about May 26, 1959. On June 17, 1959, We have examined the record and are satisfied, as the trial court
oppositors Natividad Icasiano de Gomez and Enrique Icasiano was, that the testatrix signed both original and duplicate copies
filed their joint opposition to the admission of the amended and (Exhibits "A" and "A-1", respectively) of the will spontaneously,
supplemental petition, but by order of July 20, 1959, the court on the same in the presence of the three attesting witnesses, the
admitted said petition, and on July 30, 1959, oppositor Natividad notary public who acknowledged the will; and Atty. Samson, who
Icasiano filed her amended opposition. Thereafter, the parties actually prepared the documents; that the will and its duplicate
presented their respective evidence, and after several hearings were executed in Tagalog, a language known to and spoken by
the court issued the order admitting the will and its duplicate to both the testator and the witnesses, and read to and by the
probate. From this order, the oppositors appealed directly to this testatrix and Atty. Fermin Samson, together before they were
Court, the amount involved being over P200,000.00, on the actually signed; that the attestation clause is also in a language
ground that the same is contrary to law and the evidence. known to and spoken by the testatrix and the witnesses. The
opinion of expert for oppositors, Mr. Felipe Logan, that the
signatures of the testatrix appearing in the duplicate original were
The evidence presented for the petitioner is to the effect that not written by the same had which wrote the signatures in the
Josefa Villacorte died in the City of Manila on September 12, 1958; original will leaves us unconvinced, not merely because it is
that on June 2, 1956, the late Josefa Villacorte executed a last will directly contradicted by expert Martin Ramos for the proponents,
and testament in duplicate at the house of her daughter Mrs. but principally because of the paucity of the standards used by
Felisa Icasiano at Pedro Guevara Street, Manila, published before him to support the conclusion that the differences between the
and attested by three instrumental witnesses, namely: attorneys standard and questioned signatures are beyond the writer's range
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; of normal scriptural variation.
that the will was acknowledged by the testatrix and by the said
three instrumental witnesses on the same date before attorney
Jose Oyengco Ong, Notary Public in and for the City of Manila; The expert has, in fact, used as standards only three other
and that the will was actually prepared by attorney Fermin signatures of the testatrix besides those affixed to the original of
Samson, who was also present during the execution and signing the testament (Exh. A); and we feel that with so few standards the
of the decedent's last will and testament, together with former expert's opinion and the signatures in the duplicate could not be
Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a those of the testatrix becomes extremely hazardous. This is
little girl. Of the said three instrumental witnesses to the particularly so since the comparison charts Nos. 3 and 4 fail to
execution of the decedent's last will and testament, attorneys show convincingly that the are radical differences that would
Torres and Natividad were in the Philippines at the time of the justify the charge of forgery, taking into account the advanced
hearing, and both testified as to the due execution and age of the testatrix, the evident variability of her signatures, and
authenticity of the said will. So did the Notary Public before whom the effect of writing fatigue, the duplicate being signed right the
the will was acknowledged by the testatrix and attesting original. These, factors were not discussed by the expert.
witnesses, and also attorneys Fermin Samson, who actually
prepared the document. The latter also testified upon cross Similarly, the alleged slight variance in blueness of the ink in the
examination that he prepared one original and two copies of admitted and questioned signatures does not appear reliable,
Josefa Villacorte last will and testament at his house in Baliuag, considering the standard and challenged writings were affixed to
Bulacan, but he brought only one original and one signed copy to different kinds of paper, with different surfaces and reflecting
Manila, retaining one unsigned copy in Bulacan. power. On the whole, therefore, we do not find the testimony of
the oppositor's expert sufficient to overcome that of the notary
The records show that the original of the will, which was and the two instrumental witnesses, Torres and Natividad (Dr. Diy
surrendered simultaneously with the filing of the petition and being in the United States during the trial, did not testify).
marked as Exhibit "A" consists of five pages, and while signed at
20

Nor do we find adequate evidence of fraud or undue influence.


The fact that some heirs are more favored than others is proof of
neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil.
163; Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment
is the usual reason for making a testament; otherwise, the
decedent might as well die intestate. The testamentary
dispositions that the heirs should not inquire into other property
and that they should respect the distribution made in the will,
under penalty of forfeiture of their shares in the free part do not
suffice to prove fraud or undue influence. They appear motivated
by the desire to prevent prolonged litigation which, as shown by
ordinary experience, often results in a sizeable portion of the
estate being diverted into the hands of non-heirs and speculators.
Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by
the Court of Appeals in Sideco vs. Sideco, 45 Off. Gaz. 168, fraud
and undue influence are mutually repugnant and exclude each
other; their joining as grounds for opposing probate shows
absence of definite evidence against the validity of the will.

On the question of law, we hold that the inadvertent failure of one


witness to affix his signature to one page of a testament, due to
the simultaneous lifting of two pages in the course of signing, is
not per se sufficient to justify denial of probate. Impossibility of
substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but
also by its bearing the coincident imprint of the seal of the notary
public before whom the testament was ratified by testatrix and all
three witnesses. The law should not be so strictly and literally
interpreted as to penalize the testatrix on account of the
inadvertence of a single witness over whose conduct she had no
control, where the purpose of the law to guarantee the identity of
the testament and its component pages is sufficiently attained, no
intentional or deliberate deviation existed, and the evidence on
record attests to the full observance of the statutory requisites.
Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz.
1459, at 1479 (decision on reconsideration) "witnesses may
sabotage the will by muddling or bungling it or the attestation
clause".

That the failure of witness Natividad to sign page three (3) was
entirely through pure oversight is shown by his own testimony as
well as by the duplicate copy of the will, which bears a complete
set of signatures in every page. The text of the attestation clause
and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.

This would not be the first time that this Court departs from a
strict and literal application of the statutory requirements, where
the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with
the only page signed at its foot by testator and witnesses, but not
in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the
correlative lettering of the pages of a will, the failure to make the
first page either by letters or numbers is not a fatal defect (Lopez
vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's
policy to require satisfaction of the legal requirements in order to
guard against fraud and bid faith but without undue or
unnecessary curtailment of the testamentary privilege.

The appellants also argue that since the original of the will is in
existence and available, the duplicate (Exh. A-1) is not entitled to
probate. Since they opposed probate of original because it lacked
one signature in its third page, it is easily discerned that
oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the
duly signed carbon duplicate (Exh. A-1), and the same is
probatable. If the original is valid and can be probated, then the
objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-
1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not
intentional.

That the carbon duplicate, Exhibit A-1, was produced and


admitted without a new publication does not affect the
jurisdiction of the probate court, already conferred by the original
publication of the petition for probate. The amended petition did
not substantially alter the one first filed, but merely supplemented
it by disclosing the existence of the duplicate, and no showing is
made that new interests were involved (the contents of Exhibit A
and A-1 are admittedly identical); and appellants were duly
notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any
substantial right, and we see no error in admitting the amended
petition.

IN VIEW OF THE FOREGOING, the decision appealed from is


affirmed, with costs against appellants.
21

G.R. No. L-5826 April 29, 1953

Testate estate of the late VICENTE CAGRO. JESUSA


CAGRO, petitioner-appellee,
vs.
PELAGIO CAGRO, ET AL., oppositors-appellants.

Clouduallo Lucero and Vicente C. Santos for appellants.


Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS, C.J.:

This is an appeal interposed by the oppositors from a decision of


the Court of First Instance of Samar, admitting to probate the will
allegedly executed by Vicente Cagro who died in Laoangan,
Pambujan, Samar, on February 14, 1949.

The main objection insisted upon by the appellant in that the will
is fatally defective, because its attestation clause is not signed by
the attesting witnesses. There is no question that the signatures
of the three witnesses to the will do not appear at the bottom of
the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.

We are of the opinion that the position taken by the appellant is


correct. The attestation clause is 'a memorandum of the facts
attending the execution of the will' required by law to be made by
the attesting witnesses, and it must necessarily bear their
signatures. An unsigned attestation clause cannot be considered
as an act of the witnesses, since the omission of their signatures
at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three


witnesses on the left-hand margin conform substantially to the
law and may be deemed as their signatures to the attestation
clause. This is untenable, because said signatures are in
compliance with the legal mandate that the will be signed on the
left-hand margin of all its pages. If an attestation clause not
signed by the three witnesses at the bottom thereof, be admitted
as sufficient, it would be easy to add such clause to a will on a
subsequent occasion and in the absence of the testator and any
or all of the witnesses.

Wherefore, the appealed decision is reversed and the probate of


the will in question denied. So ordered with costs against the
petitioner and appellee.

Pablo, Bengzon, Montemayor, Jugo and Labrador, JJ., concur.


22

G.R. No. L-32213 November 26, 1973 acknowledgment, which is to minimize fraud (Report of Code
Commission p. 106-107), would be thwarted.
AGAPITA N. CRUZ, petitioner,
vs. Admittedly, there are American precedents holding that notary
public may, in addition, act as a witness to the executive of the
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge
document he has notarized. (Mahilum v. Court Appeals, 64 0. G.
of Branch I, Court of First Instance of Cebu, and MANUEL 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
B. LUGAY, respondents. holding that his signing merely as notary in a will nonetheless
makes him a witness thereon (Ferguson v. Ferguson, 47 S. E. 2d.
ESGUERRA, J.: 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.
Petition to review on certiorari the judgment of the Court First Smallwood, 15 So. 1030). But these authorities do not serve the
Instance of Cebu allowing the probate of the last will a testament purpose of the law in this jurisdiction or are not decisive of the
of the late Valente Z. Cruz. Petitioner-appellant Agapita N. Cruz, issue herein because the notaries public and witnesses referred
the surviving spouse of the said decease opposed the allowance to aforecited cases merely acted as instrumental, subscribing
of the will (Exhibit "E"), alleging the will was executed through attesting witnesses, and not as acknowledging witnesses. He the
fraud, deceit, misrepresentation and undue influence; that the notary public acted not only as attesting witness but also
said instrument was execute without the testator having been acknowledging witness, a situation not envisaged by Article 805
fully informed of the content thereof, particularly as to what of the Civil Code which reads:
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 ART. 806. Every will must be acknowledged
the said last will and testament Hence this appeal by certiorari before a notary public by the testator and the
which was given due course. 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.
The only question presented for determination, on which the [Emphasis supplied]
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 To allow the notary public to act as third witness, or one the
Civil Code, the first requiring at least three credible witnesses to attesting and acknowledging witnesses, would have the effect of
attest and subscribe to the will, and the second requiring the having only two attesting witnesses to the will which would be in
testator and the witnesses to acknowledge the will before a contravention of the provisions of Article 80 be requiring at least
notary public. 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
Of the three instrumental witnesses thereto, namely Deogracias T. result would be, as has been said, that only two witnesses
Jamaloas Jr., Dr. Francisco Paares and Atty. Angel H. Teves, Jr., appeared before the notary public for or that purpose. In the
one of them, the last named, is at the same time the Notary Public circumstances, the law would not be duly in observed.
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 FOR ALL THE FOREGOING, the judgment appealed from is
the testator and of each other, considering that the three attesting hereby reversed and the probate of the last will and testament of
witnesses must appear before the notary public to acknowledge Valente Z. Cruz (Exhibit "E") is declared not valid and hereby set
the same. As the third witness is the notary public himself, aside.
petitioner argues that the result is that only two witnesses
appeared before the notary public to acknowledge the will. On the Cost against the appellee.
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.

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
23

G.R. No. 103554 May 28, 1993 On April 5, 1988, the probate court rendered a decision declaring
the will in question as the last will and testament of the late Mateo
Caballero, on the ratiocination that:
TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA,
JUAN CABALLERO, AUREA CABALLERO, OSCAR LAROSA,
HELEN CABALLERO, SANTOS CABALLERO, PABLO . . . The self-serving testimony of the two witnesses of the
CABALLERO, VICTOR RAGA, MAURICIA RAGA, QUIRICA RAGA, oppositors cannot overcome the positive testimonies of Atty.
RUPERTO ABAPO, represented herein by his Attorney-in-Fact, Filoteo Manigos and Cipriano Labuca who clearly told the Court
ARMSTICIA * ABAPO VELANO, and CONSESO CANEDA, that indeed Mateo Caballero executed the Last Will and Testament
represented herein by his heirs, JESUS CANEDA, NATIVIDAD now marked Exhibit "C" on December 5, 1978. Moreover, the fact
CANEDA and ARTURO CANEDA, petitioners, that it was Mateo Caballero who initiated the probate of his Will
vs. during his lifetime when he caused the filing of the original
HON. COURT OF APPEALS and WILLIAM CABRERA, as Special petition now marked Exhibit "D" clearly underscores the fact that
Administrator of the Estate of Mateo Caballero, respondents. this was indeed his Last Will. At the start, counsel for the
oppositors manifested that he would want the signature of Mateo
Caballero in Exhibit "C" examined by a handwriting expert of the
REGALADO, J.: NBI but it would seem that despite their avowal and intention for
the examination of this signature of Mateo Caballero in Exhibit
Presented for resolution by this Court in the present petition for "C", nothing came out of it because they abandoned the idea and
review on certiorari is the issue of whether or not the attestation instead presented Aurea Caballero and Helen Caballero Campo as
clause contained in the last will and testament of the late Mateo witnesses for the oppositors.
Caballero complies with the requirements of Article 805, in
relation to Article 809, of the Civil Code. All told, it is the finding of this Court that Exhibit "C" is the Last
Will and Testament of Mateo Caballero and that it was executed in
The records show that on December 5, 1978, Mateo Caballero, a accordance with all the requisites of the law.9
widower without any children and already in the twilight years of
his life, executed a last will and testament at his residence in Undaunted by the said judgment of the probate court, petitioners
Talisay, Cebu before three attesting witnesses, namely, Cipriano elevated the case in the Court of Appeals in CA-G.R. CV No.
Labuca, Gregorio Cabando and Flaviano Toregosa. The said 19669. They asserted therein that the will in question is null and
testator was duly assisted by his lawyer, Atty. Emilio Lumontad, void for the reason that its attestation clause is fatally defective
and a notary public, Atty. Filoteo Manigos, in the preparation of since it fails to specifically state that the instrumental witnesses
that last will.1 It was declared therein, among other things, that the to the will witnessed the testator signing the will in their presence
testator was leaving by way of legacies and devises his real and and that they also signed the will and all the pages thereof in the
personal properties to Presentacion Gaviola, Angel Abatayo, presence of the testator and of one another.
Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and
Marcosa Alcantara, all of whom do not appear to be related to the
testator.2 On October 15, 1991, respondent court promulgated its
decision 10 affirming that of the trial court, and ruling that the
attestation clause in the last will of Mateo Caballero substantially
Four months later, or on April 4, 1979, Mateo Caballero himself complies with Article 805 of the Civil Code, thus:
filed a petition docketed as Special Proceeding No. 3899-R before
Branch II of the then Court of First Instance of Cebu seeking the
probate of his last will and testament. The probate court set the The question therefore is whether the attestation clause in
petition for hearing on August 20, 1979 but the same and question may be considered as having substantialy complied with
subsequent scheduled hearings were postponed for one reason the requirements of Art. 805 of the Civil Code. What appears in
to another. On May 29, 1980, the testator passed away before his the attestation clause which the oppositors claim to be defective
petition could finally be heard by the probate court.3 On February is "we do certify that the testament was read by him and the
25, 1981, Benoni Cabrera, on of the legatees named in the will, attestator, Mateo Caballero, has published unto us the foregoing
sough his appointment as special administrator of the testator's will consisting of THREE PAGES, including the acknowledgment,
estate, the estimated value of which was P24,000.00, and he was each page numbered correlatively in letters of the upper part of
so appointed by the probate court in its order of March 6, 1981.4 each page, as his Last Will and Testament, and he has signed the
same and every page thereof, on the spaces provided for his
signature and on the left hand margin in the presence of the said
Thereafter, herein petitioners, claiming to be nephews and nieces testator and in the presence of each and all of us (emphasis
of the testator, instituted a second petition, entitled "In the Matter supplied).
of the Intestate Estate of Mateo Caballero" and docketed as
Special Proceeding No. 3965-R, before Branch IX of the aforesaid
Court of First Instance of Cebu. On October 18, 1982, herein To our thinking, this is sufficient compliance and no evidence
petitioners had their said petition intestate proceeding need be presented to indicate the meaning that the said will was
consolidated with Special Proceeding No. 3899-R in Branch II of signed by the testator and by them (the witnesses) in the
the Court of First Instance of Cebu and opposed thereat the presence of all of them and of one another. Or as the language of
probate of the Testator's will and the appointment of a special the law would have it that the testator signed the will "in the
administrator for his estate.5 presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another." If not completely or
Benoni Cabrera died on February 8, 1982 hence the probate court, ideally perfect in accordance with the wordings of Art. 805 but
now known as Branch XV of the Regional Trial Court of Cebu, (sic) the phrase as formulated is in substantial compliance with
appointed William Cabrera as special administrator on June 21, the requirement of the law." 11
1983. Thereafter, on July 20, 1983, it issued an order for the return
of the records of Special Proceeding No. 3965-R to the archives
since the testate proceeding for the probate of the will had to be Petitioners moved for the reconsideration of the said ruling of
heard and resolved first. On March 26, 1984 the case was reraffled respondent court, but the same was denied in the latter's
and eventually assigned to Branch XII of the Regional Trial Court resolution of January 14, 1992, 12 hence this appeal now before
of Cebu where it remained until the conclusion of the probate us. Petitioners assert that respondent court has ruled upon said
proceedings.6 issue in a manner not in accord with the law and settled
jurisprudence on the matter and are now questioning once more,
on the same ground as that raised before respondent court, the
In the course of the hearing in Special Proceeding No. 3899-R, validity of the attestation clause in the last will of Mateo
herein petitioners appeared as oppositors and objected to the Caballero.
allowance of the testator's will on the ground that on the alleged
date of its execution, the testator was already in the poor state of
health such that he could not have possibly executed the same. We find the present petition to be meritorious, as we shall shortly
Petitioners likewise reiterated the issue as to the genuineness of hereafter, after some prefatory observations which we feel should
the signature of the testator therein.7 be made in aid of the rationale for our resolution of the
controversy.
On the other hand, one of the attesting witnesses, Cipriano
Labuca, and the notary public Atty. Filoteo Manigos, testified that 1. A will has been defined as a species of conveyance whereby a
the testator executed the will in question in their presence while person is permitted, with the formalities prescribed by law, to
he was of sound and disposing mind and that, contrary to the control to a certain degree the disposition of his estate after his
assertions of the oppositors, Mateo Caballero was in good health death. 13 Under the Civil Code, there are two kinds of wills which a
and was not unduly influenced in any way in the execution of his testator may execute.14 the first kind is the ordinary or attested
will. Labuca also testified that he and the other witnesses attested will, the execution of which is governed by Articles 804 to 809 of
and signed the will in the presence of the testator and of each the Code. Article 805 requires that:
other. The other two attesting witnesses were not presented in
the probate hearing as the had died by then.8
24

Art. 805. Every will, other than a holographic will, must be witnesses and not to the testator, it need be signed only by
subscribed at the end thereof by the testator himself or by the them.27 Where it is left unsigned, it would result in the invalidation
testator's name written by some other person in his presence, of the will as it would be possible and easy to add the clause on a
and by his express direction, and attested and subscribed by subsequent occasion in the absence of the testator and its
three or more credible witnesses in the presence of the testator witnesses.28
and of one another.
In its report, the Code Commission commented on the reasons of
The testator or the person requested by him to write his name and the law for requiring the formalities to be followed in the
the instrumental witnesses of the will, shall also sign, as execution of wills, in the following manner:
aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in
The underlying and fundamental objectives permeating the
letters placed on the upper part of each page.
provisions on the law on wills in this Project consists in the
liberalization of the manner of their execution with the end in view
The attestation should state the number of pages used upon of giving the testator more freedom in expressing his last wishes,
which the will is written, and the fact that the testator signed the but with sufficient safeguards and restrictions to prevent the
will and every page thereof, or caused some other person to write commission of fraud and the exercise of undue and improper
his name, under his express direction, in the presence of the pressure and influence upon the testator.
instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator
This objective is in accord with the modern tendency with respect
and of one another.
to the formalities in the execution of wills. . . .29

If the attestation clause is in a language not known to the witness,


2. An examination of the last will and testament of Mateo
it shall be interpreted to them.
Caballero shows that it is comprised of three sheets all of which
have been numbered correlatively, with the left margin of each
In addition, the ordinary will must be acknowledged before a page thereof bearing the respective signatures of the testator and
notary public by a testator and the attesting witness. 15hence it is the three attesting witnesses. The part of the will containing the
likewise known as notarial will. Where the attestator is deaf or testamentary dispositions is expressed in the Cebuano-Visayan
deaf-mute, Article 807 requires that he must personally read the dialect and is signed at the foot thereof by the testator. The
will, if able to do so. Otherwise, he should designate two persons attestation clause in question, on the other hand, is recited in the
who would read the will and communicate its contents to him in a English language and is likewise signed at the end thereof by the
practicable manner. On the other hand, if the testator is blind, the three attesting witnesses hereto.30 Since it is the proverbial bone
will should be read to him twice; once, by anyone of the of contention, we reproduce it again for facility of reference:
witnesses thereto, and then again, by the notary public before
whom it is acknowledged. 16
We, the undersigned attesting Witnesses, whose Residences and
postal addresses appear on the Opposite of our respective
The other kind of will is the holographic will, which Article 810 names, we do hereby certify that the Testament was read by him
defines as one that is entirely written, dated, and signed by the and the testator, MATEO CABALLERO; has published unto us the
testator himself. This kind of will, unlike the ordinary type, foregoing Will consisting of THREE PAGES, including the
requires no attestation by witnesses. A common requirement in Acknowledgment, each page numbered correlatively in the letters
both kinds of will is that they should be in writing and must have on the upper part of each page, as his Last Will and Testament
been executed in a language or dialect known to the testator. 17 and he has the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, in the
presence of the said testator and in the presence of each and all
However, in the case of an ordinary or attested will, its attestation
of us.
clause need not be written in a language or dialect known to the
testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation It will be noted that Article 805 requires that the witness should
clause likewise need not even be known to the attesting both attest and subscribe to the will in the presence of the
witnesses. 18 The last paragraph of Article 805 merely requires testator and of one another. "Attestation" and "subscription"
that, in such a case, the attestation clause shall be interpreted to differ in meaning. Attestation is the act of senses, while
said witnesses. subscription is the act of the hand. The former is mental, the latter
mechanical, and to attest a will is to know that it was published as
such, and to certify the facts required to constitute an actual and
An attestation clause refers to that part of an ordinary will
legal publication; but to subscribe a paper published as a will is
whereby the attesting witnesses certify that the instrument has
only to write on the same paper the names of the witnesses, for
been executed before them and to the manner of the execution
the sole purpose of identification.31
the same. 19 It is a separate memorandum or record of the facts
surrounding the conduct of execution and once signed by the
witnesses, it gives affirmation to the fact that compliance with the In Taboada vs. Rizal,32 we clarified that attestation consists in
essential formalities required by law has been observed. 20 It is witnessing the testator's execution of the will in order to see and
made for the purpose of preserving in a permanent form a record take note mentally that those things are done which the statute
of the facts that attended the execution of a particular will, so that requires for the execution of a will and that the signature of the
in case of failure of the memory of the attesting witnesses, or testator exists as a fact. On the other hand, subscription is the
other casualty, such facts may still be proved. 21 signing of the witnesses' names upon the same paper for the
purpose of identification of such paper as the will which was
executed by the testator. As it involves a mental act, there would
Under the third paragraph of Article 805, such a clause, the
be no means, therefore, of ascertaining by a physical examination
complete lack of which would result in the invalidity of the
of the will whether the witnesses had indeed signed in the
will, 22 should state (1) the number of the pages used upon which
presence of the testator and of each other unless this is
the will is written; (2) that the testator signed, or expressly caused
substantially expressed in the attestation.
another to sign, the will and every page thereof in the presence of
the attesting witnesses; and (3) that the attesting witnesses
witnessed the signing by the testator of the will and all its It is contended by petitioners that the aforequoted attestation
pages, and that saidwitnesses also signed the will and every page clause, in contravention of the express requirements of the third
thereof in the presence of the testator and of one another. paragraph of Article 805 of the Civil Code for attestation clauses,
fails to specifically state the fact that the attesting witnesses the
testator sign the will and all its pages in their presence and that
The purpose of the law in requiring the clause to state the number
they, the witnesses, likewise signed the will and every page
of pages on which the will is written is to safeguard against
thereof in the presence of the testator and of each other. We
possible interpolation or omission of one or some of its pages
agree.
and to prevent any increase or decrease in the pages; 23 whereas
the subscription of the signature of the testator and the attesting
witnesses is made for the purpose of authentication and What is fairly apparent upon a careful reading of the attestation
identification, and thus indicates that the will is the very same clause herein assailed is the fact that while it recites that the
instrument executed by the testator and attested to by the testator indeed signed the will and all its pages in the presence of
witnesses.24 the three attesting witnesses and states as well the number of
pages that were used, the same does not expressly state therein
the circumstance that said witnesses subscribed their respective
Further, by attesting and subscribing to the will, the witnesses
signatures to the will in the presence of the testator and of each
thereby declare the due execution of the will as embodied in the
other.
attestation clause.25 The attestation clause, therefore, provide
strong legal guaranties for the due execution of a will and to
insure the authenticity thereof.26 As it appertains only to the
25

The phrase "and he has signed the same and every page thereof, Furthermore, the rule on substantial compliance in Article 809
on the spaces provided for his signature and on the left hand cannot be revoked or relied on by respondents since it
margin," obviously refers to the testator and not the instrumental presupposes that the defects in the attestation clause can be
witnesses as it is immediately preceded by the words "as his Last cured or supplied by the text of the will or a consideration of
Will and Testament." On the other hand, although the words "in matters apparent therefrom which would provide the data not
the presence of the testator and in the presence of each and all of expressed in the attestation clause or from which it may
us" may, at first blush, appear to likewise signify and refer to the necessarily be gleaned or clearly inferred that the acts not stated
witnesses, it must, however, be interpreted as referring only to in the omitted textual requirements were actually complied within
the testator signing in the presence of the witnesses since said the execution of the will. In other words, defects must be
phrase immediately follows the words "he has signed the same remedied by intrinsic evidence supplied by the will itself.
and every page thereof, on the spaces provided for his signature
and on the left hand margin." What is then clearly lacking, in the
In the case at bar, contrarily, proof of the acts required to have
final logical analysis , is the statement that the witnesses signed
been performed by the attesting witnesses can be supplied by
the will and every page thereof in the presence of the testator and
only extrinsic evidence thereof, since an overall appreciation of
of one another.
the contents of the will yields no basis whatsoever from with such
facts may be plausibly deduced. What private respondent insists
It is our considered view that the absence of that statement on are the testimonies of his witnesses alleging that they saw the
required by law is a fatal defect or imperfection which must compliance with such requirements by the instrumental
necessarily result in the disallowance of the will that is here witnesses, oblivious of the fact that he is thereby resorting to
sought to be admitted to probate. Petitioners are correct in extrinsic evidence to prove the same and would accordingly be
pointing out that the aforestated defect in the attestation clause doing by the indirection what in law he cannot do directly.
obviously cannot be characterized as merely involving the form of
the will or the language used therein which would warrant the
4. Prior to the advent of the Civil Code on August 30, 1950, there
application of the substantial compliance rule, as contemplated in
was a divergence of views as to which manner of interpretation
the pertinent provision thereon in the Civil Code, to wit:
should be followed in resolving issues centering on compliance
with the legal formalities required in the execution of wills. The
Art. 809. In the absence of bad faith, forgery, or fraud, or undue formal requirements were at that time embodied primarily in
and improper pressure and influence, defects and imperfections Section 618 of Act No. 190, the Code of Civil Procedure. Said
in the form of attestation or in the language used therein shall not section was later amended by Act No. 2645, but the provisions
render the will invalid if it is not proved that the will was in fact respecting said formalities found in Act. No. 190 and the
executed and attested in substantial compliance with all the amendment thereto were practically reproduced and adopted in
requirements of article 805" (Emphasis supplied.) the Civil Code.

While it may be true that the attestation clause is indeed One view advance the liberal or substantial compliance rule. This
subscribed at the end thereof and at the left margin of each page was first laid down in the case of Abangan vs. Abangan,36 where it
by the three attesting witnesses, it certainly cannot be was held that the object of the solemnities surrounding the
conclusively inferred therefrom that the said witness affixed their execution of wills is to close the door against bad faith and fraud,
respective signatures in the presence of the testator and of each to avoid substitution of wills and testaments and to guarantee
other since, as petitioners correctly observed, the presence of their truth and authenticity. Therefore, the laws on this subject
said signatures only establishes the fact that it was indeed should be interpreted in such a way as to attain these primordial
signed, but it does not prove that the attesting witnesses did ends. Nonetheless, it was also emphasized that one must not lose
subscribe to the will in the presence of the testator and of each sight of the fact that it is not the object of the law to restrain and
other. The execution of a will is supposed to be one act so that curtail the exercise of the right to make a will, hence when an
where the testator and the witnesses sign on various days or interpretation already given assures such ends, any other
occasions and in various combinations, the will cannot be interpretation whatsoever that adds nothing but demands more
stamped with the imprimatur of effectivity.33 requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded. The subsequent cases
of Avera vs. Garcia,37 Aldaba vs. Roque,38 Unson vs.
We believe that the further comment of former Justice J.B.L.
Abella,39 Pecson vs. Coronel,40 Fernandez vs. Vergel de Dios, et
Reyes34 regarding Article 809, wherein he urged caution in the
al.,41and Nayve vs. Mojal, et al.42 all adhered to this position.
application of the substantial compliance rule therein, is correct
and should be applied in the case under consideration, as well as
to future cases with similar questions: The other view which advocated the rule that statutes which
prescribe the formalities that should be observed in the execution
of wills are mandatory in nature and are to be strictly construed
. . . The rule must be limited to disregarding those defects that
was followed in the subsequent cases of In the Matter of the
can be supplied by an examination of the will itself: whether all
Estate of Saguinsin,43 In re Will of Andrada,44 Uy Coque vs.
the pages are consecutively numbered; whether the signatures
Sioca,45 In re Estate of Neumark, 46and Sano vs. Quintana.47
appear in each and every page; whether the subscribing
witnesses are three or the will was notarized. All theses are facts
that the will itself can reveal, and defects or even omissions Gumban vs. Gorecho, et al.,48 provided the Court with the
concerning them in the attestation clause can be safely occasion to clarify the seemingly conflicting decisions in the
disregarded. But the total number of pages, and whether all aforementioned cases. In said case of Gumban, the attestation
persons required to sign did so in the presence of each other clause had failed to state that the witnesses signed the will and
must substantially appear in the attestation clause, being the only each and every page thereof on the left margin in the presence of
check against perjury in the probate proceedings. (Emphasis the testator. The will in question was disallowed, with these
ours.) reasons therefor:

3. We stress once more that under Article 809, the defects and In support of their argument on the assignment of error above-
imperfections must only be with respect to the form of the mentioned, appellants rely on a series of cases of this court
attestation or the language employed therein. Such defects or beginning with (I)n the Matter of the (E)state of Saguinsin ([1920],
imperfections would not render a will invalid should it be proved 41 Phil., 875), continuing with In re Will of Andrada [1921], 42
that the will was really executed and attested in compliance with Phil., 180), Uy Coque vs. Navas L. Sioca [1922], 43 Phil., 405),
Article 805. In this regard, however, the manner of proving the and In re Estate of Neumark ([1923], 46 Phil., 841), and ending
due execution and attestation has been held to be limited to with Sano vs. Quintana ([1925], 48 Phil., 506). Appellee counters
merely an examination of the will itself without resorting to with the citation of a series of cases beginning with Abangan vs.
evidence aliunde, whether oral or written. Abangan ([1919], 40 Phil., 476), continuing through Aldaba vs.
Roque ([1922], 43 Phil., 378), and Fernandez vs. Vergel de
Dios ([1924], 46 Phil., 922), and culminating in Nayve vs. Mojal and
The foregoing considerations do not apply where the attestation
Aguilar ([1924], 47 Phil., 152). In its last analysis, our task is to
clause totally omits the fact that the attesting witnesses signed
contrast and, if possible, conciliate the last two decisions cited by
each and every page of the will in the presence of the testator and
opposing counsel, namely, those of Sano vs. Quintana, supra,
of each other.35 In such a situation, the defect is not only in the
and Nayve vs. Mojal and Aguilar, supra.
form or language of the attestation clause but the total absence of
a specific element required by Article 805 to be specifically stated
in the attestation clause of a will. That is precisely the defect In the case of Sano vs. Quintana, supra, it was decided that an
complained of in the present case since there is no plausible way attestation clause which does not recite that the witnesses signed
by which we can read into the questioned attestation clause the will and each and every page thereof on the left margin in the
statement, or an implication thereof, that the attesting witness did presence of the testator is defective, and such a defect annuls the
actually bear witness to the signing by the testator of the will and will. The case of Uy Coque vs. Sioca, supra, was cited, but the
all of its pages and that said instrumental witnesses also signed case of Nayve vs. Mojal and Aguilar, supra, was not mentioned. In
the will and every page thereof in the presence of the testator and contrast, is the decision in Nayve vs. Mojal and Aguilar, supra,
of one another. wherein it was held that the attestation clause must estate the fact
26

that the testator and the witnesses reciprocally saw the signing of May 18, 1939; Leynez vs. Leynez, G.R. No. 46097, October 18,
the will, for such an act cannot be proved by the mere exhibition 1939; Martir vs. Martir, G.R. No. 46995, June 21, 1940; and Alcala
of the will, if it is not stated therein. It was also held that the fact vs. Villa, G.R. No. 47351, April 18, 1941.
that the testator and the witnesses signed each and every page of
the will can be proved also by the mere examination of the
In the above mentioned decisions of our Supreme Court, it has
signatures appearing on the document itself, and the omission to
practically gone back to the original provisions of Section 618 of
state such evident facts does not invalidate the will.
the Code of Civil Procedure before its amendment by Act No.
2645 in the year 1916. To turn this attitude into a legislative
It is a habit of courts to reaffirm or distinguish previous cases; declaration and to attain the main objective of the proposed Code
seldom do they admit inconsistency in doctrine. Yet here, unless in the liberalization of the manner of executing wills, article 829 of
aided impossible to reconcile the Mojal and Quintana decisions. the Project is recommended, which reads:
They are fundamentally at variance. If we rely on one, we affirm. If
we rely on the other, we reverse.
"Art. 829. In the absence of bad faith, forgery, or fraud, or undue
and improper pressure and influence, defects and imperfections
In resolving this puzzling question of authority, three outstanding in the form of attestation or in the language used therein shall not
points may be mentioned. In the first place, the Mojal, decision render the will invalid if it is proved that the will was in fact
was concurred in by only four members of the court, less than a executed and attested in substantial compliance with all the
majority, with two strong dissenting opinions; the Quintana requirements of article 829."65
decision was concurred in by seven members of the court, a clear
majority, with one formal dissent. In the second place, the Mojal
The so-called liberal rule, the Court said in Gil vs.
decision was promulgated in December, 1924, while the Quintana
Murciano,66 "does not offer any puzzle or difficulty, nor does it
decision was promulgated in December, 1925; the Quintana
open the door to serious consequences. The later decisions do
decision was thus subsequent in point of time. And in the third
tell us when and where to stop; they draw the dividing line with
place, the Quintana decision is believed more nearly to conform
precision. They do not allow evidence aliunde to fill a void in any
to the applicable provisions of the law.
part of the document or supply missing details that should appear
in the will itself. They only permit a probe into the will, an
The right to dispose of property by will is governed entirely by exploration into its confines, to ascertain its meaning or to
statute. The law of the case is here found in section 61 of the determine the existence or absence of the requisite formalities of
Code of Civil Procedure as amended by Act No. 2645, and in law. This clear, sharp limitation eliminates uncertainty and ought
section 634 of the same Code, as unamended. It is in part to banish any fear of dire results."
provided in section 61, as amended that "No will . . . shall be
valid . . . unless . . .." It is further provided in the same section that
It may thus be stated that the rule, as it now stands, is that
"The attestation shall state the number of sheets or pages used,
omissions which can be supplied by an examination of the will
upon which the will is written, and the fact that the testator signed
itself, without the need of resorting to extrinsic evidence, will not
the will and every page thereof, or caused some other person to
be fatal and, correspondingly, would not obstruct the allowance
write his name, under his express direction, in the presence of
to probate of the will being assailed. However, those omissions
three witnesses, and the latter witnessed and signed the will and
which cannot be supplied except by evidence aliunde would
all pages thereof in the presence of the testator and of each
result in the invalidation of the attestation clause and ultimately,
other." Codal section 634 provides that "The will shall be
of the will itself.67
disallowed in either of the following case: 1. If not executed
and attested as in this Act provided." The law not alone carefully
makes use of the imperative, but cautiously goes further and WHEREFORE, the petition is hereby GRANTED and the impugned
makes use of the negative, to enforce legislative intention. It is decision of respondent court is hereby REVERSED and SET
not within the province of the courts to disregard the legislative ASIDE. The court a quo is accordingly directed to forthwith
purpose so emphatically and clearly expressed. DISMISS its Special Proceeding No. 3899-R (Petition for the
Probate of the Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the matter of the
We adopt and reaffirm the decision in the case of Sano vs.
Intestate Estate of Mateo Caballero) as an active case and
Quintana, supra, and, to the extent necessary, modify the
thereafter duly proceed with the settlement of the estate of the
decision in the case of Nayve vs. Mojal and Aguilar, supra.
said decedent.
(Emphases in the original text).

SO ORDERED.
But after the Gumban clarificatory pronouncement, there were
decisions of the Court that once more appeared to revive the
seeming diversity of views that was earlier threshed out therein.
The cases of Quinto vs. Morata,49Rodriguez vs.
Alcala,50 Enchevarria vs. Sarmiento,51 and Testate Estate of
52
Toray went the way of the ruling as restated in Gumban. But De
Gala vs. Gonzales, et al.,53 Rey vs. Cartagena,54 De Ticson vs. De
Gorostiza,55Sebastian vs. Panganiban,56 Rodriguez vs. Yap,57 Grey
vs. Fabia,58 Leynez vs. Leynez,59 Martir vs. Martir,60 Alcala vs. De
Villa,61 Sabado vs.
Fernandez,62 Mendoza vs. Pilapil, 63 and Lopez vs. Liboro,64 veered
away from the strict interpretation rule and established a trend
toward an application of the liberal view.

The Code Commission, cognizant of such a conflicting welter of


views and of the undeniable inclination towards a liberal
construction, recommended the codification of the substantial
compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation
of wills. Said rule thus became what is now Article 809 of the Civil
Code, with this explanation of the Code Commission:

The present law provides for only one form of executing a will,
and that is, in accordance with the formalities prescribed by
Section 618 of the Code of Civil Procedure as amended by Act No.
2645. The Supreme Court of the Philippines had previously
upheld the strict compliance with the legal formalities and had
even said that the provisions of Section 618 of the Code of Civil
Procedure, as amended regarding the contents of the attestation
clause were mandatory, and non-compliance therewith
invalidated the will (Uy Coque vs. Sioca, 43 Phil. 405). These
decisions necessarily restrained the freedom of the testator in
disposing of his property.

However, in recent years the Supreme Court changed its attitude


and has become more liberal in the interpretation of the
formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924,
27

G.R. No. L-12190 August 30, 1958 When on November 19, 1951, Felicidad was confined at the U.S.T.
Hospital for her last illness, she entrusted the said will, which was
contained in a purse, to Felina Esguerra. But a few hours later,
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP Ildefonso Yap, her husband, asked Felina for the purse: and being
deceased. FAUSTO E. GAN, petitioner-appellant, afraid of him by reason of his well-known violent temper, she
vs. delivered it to him. Thereafter, in the same day, Ildefonso Yap
ILDEFONSO YAP, oppositor-appellee. returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to
BENGZON, J.: him but not before she had taken the purse to the toilet, opened it
and read the will for the last time.2
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart
failure in the University of Santo Tomas Hospital, leaving From the oppositor's proof it appears that Felicidad Esguerra had
properties in Pulilan, Bulacan, and in the City of Manila. been suffering from heart disease for several years before her
death; that she had been treated by prominent physicians, Dr.
Agerico Sison, Dr. Agustin Liboro and others; that in May 1950
On March 17, 1952, Fausto E. Gan initiated them proceedings in husband and wife journeyed to the United States wherein for
the Manila court of first instance with a petition for the probate of several weeks she was treated for the disease; that thereafter she
a holographic will allegedly executed by the deceased, felt well and after visiting interesting places, the couple returned
substantially in these words: to this country in August 1950. However, her ailment recurred,
she suffered several attacks, the most serious of which happened
in the early morning of the first Monday of November 1951 (Nov.
Nobyembre 5, 1951. 5). The whole household was surprised and alarmed, even the
teachers of the Harvardian Colleges occupying the lower floors
and of by the Yap spouses. Physician's help was hurriedly called,
and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, hardly breathing, lying in bed, her head held high by her husband.
ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Injections and oxygen were administered. Following the doctor's
Bulacan ay aking ipinamamana sa aking mga kamag-anakang advice the patient stayed in bed, and did nothing the whole day,
sumusunod: her husband and her personal attendant, Mrs. Bantique,
constantly at her side. These two persons swore that Mrs.
Vicente Esguerra, Sr. ............................................. 5 Felicidad
Bahagi Esguerra Yap made no will, and could have made no will
on that day.
Fausto E. Gan ......................................................... 2 Bahagi
Rosario E. Gan ......................................................... 2 The
Bahagi
trial judge refused to credit the petitioner's evidence for
Filomena Alto .......................................................... 1 Bahagi reasons, the most important of which were these: (a) if
several
according to his evidence, the decedent wanted to keep her will a
Beatriz Alto .............................................................. 1 secret,
Bahagi so that her husband would not know it, it is strange she
executed it in the presence of Felina Esguerra, knowing as she
did that witnesses were unnecessary; (b) in the absence of a
At ang aking lahat ng ibang kayamanan sa Maynila at iba showing that Felina was a confidant of the decedent it is hard to
panglugar ay aking ipinamamana sa aking asawang si Idelfonso believe that the latter would have allowed the former to see and
D. Yap sa kondisyong siya'y magpapagawa ng isang Health read the will several times; (c) it is improbable that the decedent
Center na nagkakahalaga ng di kukulangin sa halagang would have permitted Primitivo Reyes, Rosario Gan Jimenez and
P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking Socorro Olarte to read her will, when she precisely wanted its
pangalang Felicidad Esguerra-Alto. At kung ito ay may contents to remain a secret during her lifetime; (d) it is also
kakulangan man ay bahala na ang aking asawa ang magpuno improbable that her purpose being to conceal the will from her
upang matupad ang aking kagustuhan. husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her
husband; (e) if it is true that the husband demanded the purse
(Lagda) Felicidad E. Alto-Yap. from Felina in the U.S.T. Hospital and that the will was there, it is
hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
Opposing the petition, her surviving husband Ildefonso Yap
asserted that the deceased had not left any will, nor executed any
testament during her lifetime. In the face of these improbabilities, the trial judge had to accept
the oppositor's evidence that Felicidad did not and could not have
executed such holographic will.
After hearing the parties and considering their evidence, the Hon.
Ramon R. San Jose, Judge,1 refused to probate the alleged will. A
seventy-page motion for reconsideration failed. Hence this In this appeal, the major portion of appellant's brief discussed the
appeal. testimony of the oppositor and of his witnesses in a vigorous
effort to discredit them. It appears that the same arguments, or
most of them, were presented in the motion to reconsider; but
The will itself was not presented. Petitioner tried to establish its
they failed to induce the court a quo to change its mind. The
contents and due execution by the statements in open court of
oppositor's brief, on the other hand, aptly answers the criticisms.
Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan
We deem it unnecessary to go over the same matters, because in
Jimenez, whose testimonies may be summarized as follows:
our opinion the case should be decided not on the weakness of
the opposition but on the strength of the evidence of the
Sometime in 1950 after her last trip abroad, Felicidad Esguerra petitioner, who has the burden of proof.
mentioned to her first cousin, Vicente Esguerra, her desire to
make a will. She confided however that it would be useless if her
The Spanish Civil Code permitted the execution of holographic
husband discovered or knew about it. Vicente consulted with
wills along with other forms. The Code of Civil Procedure (Act
Fausto E. Gan, nephew of Felicidad, who was then preparing for
190) approved August 7, 1901, adopted only one form, thereby
the bar examinations. The latter replied it could be done without
repealing the other forms, including holographic wills.
any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no
time in transmitting the information, and on the strength of it, in The New Civil Code effective in 1950 revived holographic wills in
the morning of November 5, 1951, in her residence at Juan Luna its arts. 810-814. "A person may execute a holographic will which
Street, Manila, Felicidad wrote, signed and dated a holographic must be entirely written, dated, and signed by the hand of the
will substantially of the tenor above transcribed, in the presence testator himself. It is subject to no other form and may be made in
of her niece, Felina Esguerra (daughter of Vicente), who was or out of the Philippines, and need not be witnessed."
invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she allowed him
to read the will in the presence of Felina Esguerra, who again read This is indeed a radical departure from the form and solemnities
it. provided for wills under Act 190, which for fifty years (from 1901
to 1950) required wills to be subscribed by the testator and three
credible witnesses in each and every page; such witnesses to
Nine days later, he had other visitors: Socorro Olarte a cousin, attest to the number of sheets used and to the fact that the
and Rosario Gan Jimenez, a niece. To these she showed the will, testator signed in their presence and that they signed in the
again in the presence of Felina Esguerra, who read it for the third presence of the testator and of each other.
time.
28

The object of such requirements it has been said, is to close the not then be validly made here. (See also Sec. 46, Rule 123; Art.
door against bad faith and fraud, to prevent substitution of wills, 830-New Civil Code.)
to guarantee their truth and authencity (Abangan vs. Abangan, 40
Phil., 476) and to avoid those who have no right to succeed the
Could Rule 77 be extended, by analogy, to holographic wills?
testator would succeed him and be benefited with the probate of
same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the Spanish commentators agree that one of the greatest objections
instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st to the holographic will is that it may be lost or stolen4 an
Supp. No. 3 p. 194.) implied admission that such loss or theft renders it useless..

Authenticity and due execution is the dominant requirements to This must be so, because the Civil Code requires it to be
be fulfilled when such will is submitted to the courts for protocoled and presented to the judge, (Art. 689) who shall
allowance. For that purpose the testimony of one of the subscribe it and require its identity to be established by the three
subscribing witnesses would be sufficient if there is no witnesses who depose that they have no reasonable doubt
opposition (Sec. 5, Rule 77). If there is, the three must testify, if that the will was written by the testator (Art. 691). And if the judge
available. (Cabang vs. Delfinado, 34 Phil., 291; considers that the identity of the will has been proven he shall
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such order that it be filed (Art. 693). All these, imply presentation of the
witnesses (and of other additional witnesses) the court may form will itself. Art. 692 bears the same implication, to a greater degree.
its opinion as to the genuineness and authenticity of the It requires that the surviving spouse and the legitimate
testament, and the circumstances its due execution. ascendants and descendants be summoned so that they may
make "any statement they may desire to submit with respect to
the authenticity of the will." As it is universally admitted that the
Now, in the matter of holographic wills, no such guaranties of
holographic will is usually done by the testator and by himself
truth and veracity are demanded, since as stated, they need no
alone, to prevent others from knowing either its execution or its
witnesses; provided however, that they are "entirely written,
contents, the above article 692 could not have the idea of simply
dated, and signed by the hand of the testator himself." The law, it
permitting such relatives to state whether they know of the will,
is reasonable to suppose, regards the document itself as material
but whether in the face of the document itself they think the
proof of authenticity, and as its own safeguard, since it could at
testator wrote it. Obviously, this they can't do unless the will
any time, be demonstrated to be or not to be in the hands of
itself is presented to the Court and to them.
the testator himself. "In the probate of a holographic will" says
the New Civil Code, "it shall be necessary that at least one
witness who knows the handwriting and signature of the testator Undoubtedly, the intention of the law is to give the near relatives
explicitly declare that the will and the signature are in the the choice of either complying with the will if they think it
handwriting of the testator. If the will is contested, at least three authentic, or to oppose it, if they think it spurious.5 Such purpose
such witnesses shall be required. In the absence of any such is frustrated when the document is not presented for their
witnesses, (familiar with decedent's handwriting) and if the court examination. If it be argued that such choice is not essential,
deem it necessary, expert testimony may be resorted to." because anyway the relatives may oppose, the answer is that
their opposition will be at a distinct disadvantage, and they
have the right and privilege to comply with the will, if genuine, a
The witnesses so presented do not need to have seen the
right which they should not be denied by withholding inspection
execution of the holographic will. They may be mistaken in their
thereof from them.
opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may
present other witnesses who also know the testator's We find confirmation of these ideas--about exhibition of the
handwriting, or some expert witnesses, who after comparing the document itself--in the decision of the Supreme Court of Spain of
will with other writings or letters of the deceased, have come to June 5, 1925, which denied protocolization or probate to a
the conclusion that such will has not been written by the hand of document containing testamentary dispositions in the
the deceased. (Sec. 50, Rule 123). And the court, in view of such handwriting of the deceased, but apparently mutilated, the
contradictory testimony may use its own visual sense, and signature and some words having been torn from it. Even in the
decide in the face of the document, whether the will submitted to face of allegations and testimonial evidence (which was
it has indeed been written by the testator. controverted), ascribing the mutilation to the opponents of the
will. The aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole and
Obviously, when the will itself is not submitted, these means of
unmutilated, must be presented; otherwise, it shall produce no
opposition, and of assessing the evidence are not available. And
effect.
then the only guaranty of authenticity3 the testator's
handwriting has disappeared.
Considerando que sentado lo anterior, y estableciendose en el
parrafo segundo del articulo 688 del Codigo civil, que para que
Therefore, the question presents itself, may a holographic will be
sea valido el testamento olografo debera estar escrito todo el y
probated upon the testimony of witnesses who have allegedly
firmado por testador, con expression del ao, mes y dia en que se
seen it and who declare that it was in the handwriting of the
otorque, resulta evidente que para la validez y eficacia de esos
testator? How can the oppositor prove that such document was
testamentos, no basta la demostracion mas o menos cumplida de
not in the testator's handwriting? His witnesses who know
que cuando se otorgaron se Ilenaron todos esos requisitos, sino
testator's handwriting have not examined it. His experts can not
que de la expresada redaccion el precepto legal, y por el tiempo
testify, because there is no way to compare the alleged testament
en que el verbo se emplea, se desprende la necesidad de que el
with other documents admittedly, or proven to be, in the testator's
documento se encuentre en dichas condiciones en el momento
hand. The oppositor will, therefore, be caught between the upper
de ser presentado a la Autoridad competente, para au adveracion
millstone of his lack of knowledge of the will or the form thereof,
y protocolizacion; y como consecuencia ineludible de ello,
and the nether millstone of his inability to prove its falsity. Again
forzoso es affirmar que el de autos carece de validez y aficacia,
the proponent's witnesses may be honest and truthful; but they
por no estarfirmado por el testador, cualquiera que sea la causa
may have been shown a faked document, and having no interest
de la falta de firma, y sin perjuicio de las acciones que puedan
to check the authenticity thereof have taken no pains to examine
ejercitar los perjudicados, bien para pedir indemnizacion por el
and compare. Or they may be perjurers boldly testifying, in the
perjuicio a la persona culpable, si la hubiere, o su castigo en via
knowledge that none could convict them of perjury, because no
criminal si procediere, por constituir dicha omision un defecto
one could prove that they have not "been shown" a document
insubsanable . . . .
which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as
to the handwriting could be tested by exhibiting to them other This holding aligns with the ideas on holographic wills in the
writings sufficiently similar to those written by the deceased; but Fuero Juzgo, admittedly the basis of the Spanish Civil Code
what witness or lawyer would not foresee such a move and provisions on the matter.6
prepare for it? His knowledge of the handwriting established, the
witness (or witnesses) could simply stick to his statement: he has
seen and read a document which he believed was in the PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V,
deceased's handwriting. And the court and the oppositor would ley 15--E depues que los herederos e sus fijos ovieren esta
manda, fasta ... annos muestrenla al obispo de la tierra, o al juez
practically be at the mercy of such witness (or witnesses) not
only as to the execution, but also as to the contents of the will. fasta VI meses y el obispo o el juez tomen otros tales tres
Does the law permit such a situation? escritos, que fuesen fechos por su mano daquel que fizo la
manda; e por aquellos escriptos, si semjara la letra de la manda,
sea confirmada la manda. E depues que todo esto fuere
The Rules of Court, (Rule 77) approved in 1940 allow proof (and connoscido, el obispo o el juez, o otras testimonios confirmen el
probate) of a lost or destroyed will by secondary evidence the escripto de la manda otra vez, y en esta manera vala la manda.
testimony of witnesses, in lieu of the original document. Yet such (Art. 689, Scaevola--Codigo Civil.)
Rules could not have contemplated holographic wills which could
29

(According to the Fuero above, the will itself must be compared In fine, even if oral testimony were admissible to establish and
with specimens of the testators handwriting.) probate a lost holographic will, we think the evidence submitted
by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and
All of which can only mean: the courts will not distribute the
distinct" proof required by Rule 77, sec. 6.11
property of the deceased in accordance with his holographic will,
unless they are shown his handwriting and signature.7
Wherefore, the rejection of the alleged will must be sustained.
Parenthetically, it may be added that even the French Civil Law
considers the loss of the holographic will to be fatal. (Planiol y Judgment affirmed, with costs against petitioner.
Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946,
Tomo V, page 555).

Taking all the above circumstances together, we reach the


conclusion that the execution and the contents of a lost or
destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will.8

Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the
allowance of such holographic wills. We hesitate, however, to
make this Rule decisive of this controversy, simultaneously with
its promulgation. Anyway, decision of the appeal may rest on the
sufficiency, rather the insufficiency, of the evidence presented by
petitioner Fausto E. Gan.

At this point, before proceeding further, it might be convenient to


explain why, unlike holographic wills, ordinary wills may be
proved by testimonial evidence when lost or destroyed. The
difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and
of the notary, now). The loss of the holographic will entails the
loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.

In the case of ordinary wills, it is quite hard to convince three


witnesses (four with the notary) deliberately to lie. And then their
lies could be checked and exposed, their whereabouts and acts
on the particular day, the likelihood that they would be called by
the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes.
Last but not least, they can not receive anything on account of
the will.

Whereas in the case of holographic wills, if oral testimony were


admissible9 only one man could engineer the fraud this way: after
making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest
and credible witnesses see and read the forgery; and the latter,
having no interest, could easily fall for it, and in court they would
in all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in
an "accident" the oppositors have no way to expose the trick
and the error, because the document itself is not at hand. And
considering that the holographic will may consist of two or three
pages, and only one of them need be signed, the substitution of
the unsigned pages, which may be the most important ones, may
go undetected.

If testimonial evidence of holographic wills be permitted, one


more objectionable feature feasibility of forgery would be
added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10

One more fundamental difference: in the case of a lost will, the


three subscribing witnesses would be testifying to a fact which
they saw, namely the act of the testator of subscribing the will;
whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they
allegedly saw, an opinion which can not be tested in court, nor
directly contradicted by the oppositors, because the handwriting
itself is not at hand.

Turning now to the evidence presented by the petitioner, we find


ourselves sharing the trial judge's disbelief. In addition to the
dubious circumstances described in the appealed decision, we
find it hard to believe that the deceased should show her will
precisely to relatives who had received nothing from it: Socorro
Olarte and Primitivo Reyes. These could pester her into amending
her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she
wanted so much to conceal the will from her husband, why did
she not entrust it to her beneficiaries? Opportunity to do so was
not lacking: for instance, her husband's trip to Davao, a few days
after the alleged execution of the will.
30

G.R. No. L-58509 December 7, 1982 Appellant's motion for reconsideration was denied. Hence, an
appeal to the Court of Appeals in which it is contended that the
dismissal of appellant's petition is contrary to law and well-settled
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF jurisprudence.
RICARDO B. BONILLA deceased, MARCELA
RODELAS, petitioner-appellant,
vs. On July 7, 1980, appellees moved to forward the case to this
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. Court on the ground that the appeal does not involve question of
LORENZO SUMULONG, intervenor. fact and alleged that the trial court committed the following
assigned errors:
RELOVA, J.:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
This case was certified to this Tribunal by the Court of Appeals THEREOF;
for final determination pursuant to Section 3, Rule 50 of the Rules
of Court.
II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING
As found by the Court of Appeals: HOLOGRAPHIC WILL;

... On January 11, 1977, appellant filed a petition with the Court of III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S
First Instance of Rizal for the probate of the holographic will of WILL.
Ricardo B. Bonilla and the issuance of letters testamentary in her
favor. The petition, docketed as Sp. Proc. No. 8432, was opposed
by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes The only question here is whether a holographic will which was
Expedita Bonilla Frias and Ephraim Bonilla on the following lost or cannot be found can be proved by means of a photostatic
grounds: copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its
due execution has been proved. The probate may be uncontested
(1) Appellant was estopped from claiming that the deceased left a or not. If uncontested, at least one Identifying witness is required
will by failing to produce the will within twenty days of the death and, if no witness is available, experts may be resorted to. If
of the testator as required by Rule 75, section 2 of the Rules of contested, at least three Identifying witnesses are required.
Court; However, if the holographic will has been lost or destroyed and
no other copy is available, the will can not be probated because
(2) The alleged copy of the alleged holographic will did not the best and only evidence is the handwriting of the testator in
contain a disposition of property after death and was not intended said will. It is necessary that there be a comparison between
to take effect after death, and therefore it was not a will sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be
(3) The alleged hollographic will itself,and not an alleged copy made with the standard writings of the testator. In the case of
thereof, must be produced, otherwise it would produce no effect, Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution
as held in Gam v. Yap, 104 Phil. 509; and and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen
(4 ) The deceased did not leave any will, holographic or otherwise, and/or read such will.
executed and attested as required by law.
The will itself must be presented; otherwise, it shall produce no
The appellees likewise moved for the consolidation of the case effect. The law regards the document itself as material proof of
with another case Sp. Proc. No, 8275). Their motion was granted authenticity." But, in Footnote 8 of said decision, it says that
by the court in an order dated April 4, 1977. "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means,
if any, whereby the authenticity of the handwriting of the
On November 13, 1978, following the consolidation of the cases, deceased may be exhibited and tested before the probate court,"
the appellees moved again to dismiss the petition for the probate Evidently, the photostatic or xerox copy of the lost or destroyed
of the will. They argued that: holographic will may be admitted because then the authenticity of
the handwriting of the deceased can be determined by the
(1) The alleged holographic was not a last will but merely an probate court.
instruction as to the management and improvement of the
schools and colleges founded by decedent Ricardo B. Bonilla; WHEREFORE, the order of the lower court dated October 3, 1979,
and denying appellant's motion for reconsideration dated August 9,
1979, of the Order dated July 23, 1979, dismissing her petition to
(2) Lost or destroyed holographic wills cannot be proved by approve the will of the late Ricardo B. Bonilla, is hereby SET
secondary evidence unlike ordinary wills. ASIDE.

Upon opposition of the appellant, the motion to dismiss was SO ORDERED.


denied by the court in its order of February 23, 1979.

The appellees then filed a motion for reconsideration on the


ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court
set aside its order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The court said:

... It is our considered opinion that once the original copy of the
holographic will is lost, a copy thereof cannot stand in lieu of the
original.

In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court
held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the
material proof of authenticity of said wills.

MOREOVER, this Court notes that the alleged holographic will


was executed on January 25, 1962 while Ricardo B. Bonilla died
on May 13, 1976. In view of the lapse of more than 14 years from
the time of the execution of the will to the death of the decedent,
the fact that the original of the will could not be located shows to
our mind that the decedent had discarded before his death his
allegedly missing Holographic Will.
31

G.R. Nos. 83843-44 April 5, 1990 The alleged undated holographic will written in Ilocano translated
into English, is quoted as follows:
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), ENGLISH INTERPRETATION OF THE WILL OF THE
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and LATE MELECIO LABRADOR WRITTEN IN ILOCANO
CRISTOBAL LABRADOR, petitioners-appellants, BY ATTY. FIDENCIO L. FERNANDEZ
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS I First Page
LABRADOR, respondents-appellees.

This is also where it appears in writing of the place which is


PARAS, J.: assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
The sole issue in this case is whether or not the alleged Tagale.
holographic will of one Melecio Labrador is dated, as provided for
in Article 8102 of the New Civil Code. And this place that is given as the share to him, there is a
measurement of more or less one hectare, and the boundary at
The antecedent and relevant facts are as follows: On June 10, the South is the property and assignment share of ENRICA
1972, Melecio Labrador died in the Municipality of Iba, province of LABRADOR, also their sister, and the boundary in the West is the
Zambales, where he was residing, leaving behind a parcel of land sea, known as the SEA as it is, and the boundary on the NORTH is
designated as Lot No. 1916 under Original Certificate of Title No. assignment belonging to CRISTOBAL LABRADOR, who likewise
P-1652, and the following heirs, namely: Sagrado, Enrica, is also their brother. That because it is now the time for me being
Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, now ninety three (93) years, then I feel it is the right time for me to
all surnamed Labrador, and a holographic will. partition the fishponds which were and had been bought or
acquired by us, meaning with their two mothers, hence there shall
be no differences among themselves, those among brothers and
On July 28, 1975, Sagrado Labrador (now deceased but sisters, for it is I myself their father who am making the
substituted by his heirs), Enrica Labrador and Cristobal Labrador, apportionment and delivering to each and everyone of them the
filed in the court a quo a petition for the probate docketed as said portion and assignment so that there shall not be any cause
Special Proceeding No. 922-I of the alleged holographic will of the of troubles or differences among the brothers and sisters.
late Melecio Labrador.

II Second Page
Subsequently, on September 30, 1975, Jesus Labrador (now
deceased but substituted by his heirs), and Gaudencio Labrador
filed an opposition to the petition on the ground that the will has And this is the day in which we agreed that we are making the
been extinguished or revoked by implication of law, alleging partitioning and assigning the respective assignment of the said
therein that on September 30, 1971, that is, before Melecio's fishpond, and this being in the month of March, 17th day, in the
death, for the consideration of Six Thousand (P6,000) Pesos, year 1968, and this decision and or instruction of mine is the
testator Melecio executed a Deed of Absolute Sale, selling, matter to be followed. And the one who made this writing is no
transferring and conveying in favor of oppositors Jesus and other than MELECIO LABRADOR, their father.
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-
1652 had been cancelled by T.C.T. No. T-21178. Earlier however, Now, this is the final disposition that I am making in writing and it
in 1973, Jesus Labrador sold said parcel of land to Navat for only is this that should be followed and complied with in order that any
Five Thousand (P5,000) Pesos. (Rollo, p. 37) differences or troubles may be forestalled and nothing will
happen along these troubles among my children, and that they
Sagrado thereupon filed, on November 28, 1975, against his will be in good relations among themselves, brothers and sisters;
brothers, Gaudencio and Jesus, for the annulment of said
purported Deed of Absolute Sale over a parcel of land which And those improvements and fruits of the land; mangoes,
Sagrado allegedly had already acquired by devise from their bamboos and all coconut trees and all others like the other kind
father Melecio Labrador under a holographic will executed on of bamboo by name of Bayog, it is their right to get if they so
March 17, 1968, the complaint for annulment docketed as Civil need, in order that there shall be nothing that anyone of them
Case No. 934-I, being premised on the fact that the aforesaid Deed shall complain against the other, and against anyone of the
of Absolute Sale is fictitious. brothers and sisters.

After both parties had rested and submitted their respective III THIRD PAGE
evidence, the trial court rendered a joint decision dated February
28, 1985, allowing the probate of the holographic will and
declaring null and void the Deed of Absolute sale. The court a And that referring to the other places of property, where the said
quo had also directed the respondents (the defendants in Civil property is located, the same being the fruits of our earnings of
Case No. 934-I) to reimburse to the petitioners the sum of the two mothers of my children, there shall be equal portion of
P5,000.00 representing the redemption price for the property paid each share among themselves, and or to be benefitted with all
by the plaintiff-petitioner Sagrado with legal interest thereon from those property, which property we have been able to acquire.
December 20, 1976, when it was paid to vendee a retro.
That in order that there shall be basis of the truth of this writing
Respondents appealed the joint decision to the Court of Appeals, (WILL) which I am here hereof manifesting of the truth and of the
which on March 10, 1988 modified said joint decision of the fruits of our labor which their two mothers, I am signing my
court a quo by denying the allowance of the probate of the will for signature below hereof, and that this is what should be complied
being undated and reversing the order of reimbursement. with, by all the brothers and sisters, the children of their two
Petitioners' Motion for Reconsideration of the aforesaid decision mothers JULIANA QUINTERO PILARISA and CASIANA
was denied by the Court of Appeals, in the resolution of June 13, AQUINO VILLANUEVA Your father who made this writing (WILL),
1988. Hence, this petition. and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

Petitioners now assign the following errors committed by The petition, which principally alleges that the holographic will is
respondent court, to wit: really dated, although the date is not in its usual place, is
impressed with merit.
I
The will has been dated in the hand of the testator himself in
perfect compliance with Article 810.1wphi1 It is worthy of note to
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND quote the first paragraph of the second page of the holographic
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF will, viz:
THE TESTATOR MELECIO LABRADOR; and

And this is the day in which we agreed that we are making the
II partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER year 1968, and this decision and or instruction of mine is the
OF THE LOWER COURT DIRECTING THE REIMBURSEMENT OF matter to be followed. And the one who made this writing is no
THE FIVE THOUSAND PESOS REPRESENTING THE other than MELECIO LABRADOR, their father. (emphasis
REDEMPTION PRICE WAS ERRONEOUS. supplied) (p. 46, Rollo)
32

The law does not specify a particular location where the date
should be placed in the will. The only requirements are that the
date be in the will itself and executed in the hand of the testator.
These requirements are present in the subject will.

Respondents claim that the date 17 March 1968 in the will was
when the testator and his beneficiaries entered into an agreement
among themselves about "the partitioning and assigning the
respective assignments of the said fishpond," and was not the
date of execution of the holographic will; hence, the will is more
of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783
which defines a will as "an act whereby a person is permitted,
with the formalities prescribed by law, to control to a certain
degree the disposition of his estate, to take effect after his death."

Respondents are in error. The intention to show 17 March 1968 as


the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner,
the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a will.
The act of partitioning and the declaration that such partitioning
as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate
property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his
estate.

Anent the second issue of finding the reimbursement of the


P5,000 representing the redemption price as erroneous,
respondent court's conclusion is incorrect. When private
respondents sold the property (fishpond) with right to repurchase
to Navat for P5,000, they were actually selling property belonging
to another and which they had no authority to sell, rendering such
sale null and void. Petitioners, thus "redeemed" the property from
Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners
therefore deserve to be reimbursed the P5,000.

PREMISES CONSIDERED, the decision of the Court of Appeals


dated March 10, 1988 is hereby REVERSED. The holographic will
of Melecio Labrador is APPROVED and ALLOWED probate. The
private respondents are directed to REIMBURSE the petitioners
the sum of Five Thousand Pesos (P5,000.00).

SO ORDERED.
33

G.R. No. L-14003 August 5, 1960 In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee. We agree with the appellant that since the authenticity of the will
was not contested, he was not required to produce more than one
witness; but even if the genuineness of the holographic will were
REYES, J.B.L., J.: contested, we are of the opinion that Article 811 of our present
Civil Code can not be interpreted as to require the compulsory
This appeal, taken on points of law from a decision rendered on presentation of three witnesses to identify the handwriting of the
15 January 1958 by the Court of First Instance of Quezon City in testator, under penalty of having the probate denied. Since no
its Special Proceedings No. Q-2640, involves the determination of witness may have been present at the execution of a holographic
the quantity of evidence required for the probate of a holographic will, none being required by law (Art. 810, new Civil Code), it
will. becomes obvious that the existence of witness possessing the
requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and
The established facts are thus summarized in the decision producing any three witnesses; they must be witnesses "who
appealed from (Rec. App. pp. 22-24): know the handwriting and signature of the testator" and who can
declare (truthfully, of course, even if the law does not so express)
"Briefly speaking, the following facts were established by the "that the will and the signature are in the handwriting of the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance testator". There may be no available witness of the testator's
died at 13 Luskot, Quezon City, known to be the last residence of hand; or even if so familiarized, the witnesses may be unwilling to
said testatrix; that Francisco Azaola, petitioner herein for probate give a positive opinion. Compliance with the rule of paragraph 1
of the holographic will, submitted the said holographic will (Exh. of Article 811 may thus become an impossibility. That is evidently
C) whereby Maria Milagros Azaola was made the sole heir as the reason why the second paragraph of Article 811 prescribes
against the nephew of deceased Cesario Singson; that witness that
Francisco Azaola testified that he saw the holographic will (Exh.
C) one month, more or less, before the death of the testatrix, as in the absence of any competent witness referred to in the
the same was handed to him and his wife; that the witness preceding paragraph, and if the court deems it necessary, expert
testified also that he recognized all the signatures appearing in testimony may be resorted to.
the holographic will (Exh. C) as the handwriting of the testatrix
and to reinforce said statement, witness presented the mortgage
(Exh. E), the special power of the attorney (Exh. F), and the As can be seen, the law foresees the possibility that no qualified
general power of attorney (Exh. F-1), besides the deeds of sale witness may be found (or what amounts to the same thing, that
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there no competent witness may be willing to testify to the authenticity
were further exhibited in court two residence certificates (Exhs. H of the will), and provides for resort to expert evidence to supply
and H-1) to show the signatures of the testatrix, for comparison the deficiency.
purposes; that said witness, Azaola, testified that the penmanship
appearing in the aforesaid documentary evidence is in the It may be true that the rule of this article (requiring that three
handwriting of the testatrix as well as the signatures appearing in witnesses be presented if the will is contested and only one if no
the aforesaid documentary evidence is in the handwriting of the contest is had) was derived from the rule established for ordinary
testatrix as well as the signatures appearing therein are the testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs.
signatures of the testatrix; that said witness, in answer to a Francisco, 57 Phil., 742). But it can not be ignored that the
question of his counsel admitted that the holographic will was requirement can be considered mandatory only in the case of
handed to him by the testatrix. "apparently it must have been ordinary testaments, precisely because the presence of at least
written by her" (t.s.n., p. 11). three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic,
However, on page 16 on the same transcript of the stenographic no witness need be present (Art. 10), and the rule requiring
notes, when the same witness was asked by counsel if he was production of three witnesses must be deemed merely permissive
familiar with the penmanship and handwriting of the deceased if absurd results are to be avoided.
Fortunata Vda. de Yance, he answered positively in the affirmative
and when he was asked again whether the penmanship referred Again, under Article 811, the resort to expert evidence is
to in the previous answer as appearing in the holographic will conditioned by the words "if the Court deem it necessary", which
(Exh. C) was hers (testatrix'), he answered, "I would definitely say reveal that what the law deems essential is that the Court should
it is hers"; that it was also established in the proceedings that the be convinced of the will's authenticity. Where the prescribed
assessed value of the property of the deceased in Luskot, Quezon number of witnesses is produced and the court is convinced by
City, is in the amount of P7,000.00. their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no
The opposition to the probate was on the ground that (1) the competent witness is available, or none of those produced is
execution of the will was procured by undue and improper convincing, the Court may still, and in fact it should, resort to
pressure and influence on the part of the petitioner and his wife, handwriting experts. The duty of the Court, in fine, is to exhaust
and (2) that the testatrix did not seriously intend the instrument to all available lines of inquiry, for the state is as much interested as
be her last will, and that the same was actually written either on the proponent that the true intention of the testator be carried into
the 5th or 6th day of August 1957 and not on November 20, 1956 effect.
as appears on the will.
Commenting on analogous provisions of Article 691 of the
The probate was denied on the ground that under Article 811 of Spanish Civil Code of 1889, the noted Commentator, Mucuis
the Civil Code, the proponent must present three witnesses who Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
could declare that the will and the signature are in the writing of
the testatrix, the probate being contested; and because the lone La manera como esta concebida la redaccion del ultimo apartado
witness presented by the proponent "did not prove sufficiently de dicho precepto induce la conclusion de que siempre o por lo
that the body of the will was written in the handwriting of the menos, en la mayor parte de los casos, el Juez debe acudir al
testatrix." criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del
The proponent appealed, urging: first, that he was not bound to expediente las declaraciones testificales. La prudencia con que el
produce more than one witness because the will's authenticity Juez debe de proceder en resoluciones de transcendencia asi lo
was not questioned; and second, that Article 811 does not exige, y la indole delicada y peligrosa del testamento olografo lo
mandatorily require the production of three witnesses to identify hace necesario para mayor garantia de todos los interes
the handwriting and signature of a holographic will, even if its comprometidos en aquel.
authenticity should be denied by the adverse party.
En efecto, el cotejo pericial de letras puede ser una confirmacion
Article 811 of the Civil Code of the Philippines is to the following facultativa del dicho profano de los testigos y un modo de
effect: desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca
de la autenticidad que trata de averigaur y declarar. Para eso se
ha escrito la frase del citado ultimo apartado, (siempre que el
ART. 811. In the probate of a holographic will, it shall be Juez lo estime conveniente), haya habido o no testigos y dudaran
necessary that at least one witness who knows the handwriting o no estos respecto de los extremos por que son preguntados.
and signature of the testator explicitly declare that the will and the
signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
34

El arbitrio judicial en este caso debe formarse con independencia


de los sucesos y de su significacion, para responder
debidamente de las resoluciones que haya de dictar.

And because the law leaves it to the trial court if experts are still
needed, no unfavourable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court
expresses dissatisfaction with the testimony of the lay witnesses.

Our conclusion is that the rule of the first paragraph of Article 811
of the Civil Code is merely directory and is not mandatory.

Considering, however, that this is the first occasion in which this


Court has been called upon to construe the import of said article,
the interest of justice would be better served, in our opinion, by
giving the parties ample opportunity to adduce additional
evidence, including expert witnesses, should the Court deem
them necessary.

In view of the foregoing, the decision appealed from is set aside,


and the records ordered remanded to the Court of origin, with
instructions to hold a new trial in conformity with this opinion.
But evidence already on record shall not be retaken. No costs.
35

Ramonal, is denied for insufficiency of evidence and lack of


merits.7
G.R. No. 123486 August 12, 1999
On December 12, 1990, respondents filed a notice of appeal,8 and
in support of their appeal, the respondents once again reiterated
EUGENIA RAMONAL CODOY, and MANUEL
the testimony of the following witnesses, namely: (1) Augusto
RAMONAL, petitioners,
Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
vs.
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and
Calugay.
UEFEMIA PATIGAS, respondents.

To have a clear understanding of the testimonies of the


PARDO, J.:
witnesses, we recite an account of their testimonies.

Before us is a petition for review on certiorari of the decision of


Augusto Neri, Clerk of Court, Court of First Instance of Misamis
the Court of Appeals1 and its resolution denying reconsideration,
Oriental, where the special proceedings for the probate of the
ruling:
holographic will of the deceased was filed. He produced and
identified the records of the case. The documents presented bear
Upon the unrebutted testimony of appellant Evangeline Calugay the signature of the deceased, Matilde Seo Vda. de Ramonal, for
and witness Matilde Ramonal Binanay, the authenticity of the purpose of laying the basis for comparison of the handwriting
testators holographic will has been established and the of the testatrix, with the writing treated or admitted as genuine by
handwriting and signature therein (exhibit S) are hers, enough to the party against whom the evidence is offered.
probate said will. Reversal of the judgment appealed from and the
probate of the holographic will in question be called for. The rule
Generosa Senon, election registrar of Cagayan de Oro, was
is that after plaintiff has completed presentation of his evidence
presented to produced and identify the voter's affidavit of the
and the defendant files a motion for judgment on demurrer to
decedent. However, the voters' affidavit was not produced for the
evidence on the ground that upon the facts and the law plaintiff
same was already destroyed and no longer available.
has shown no right to relief, if the motion is granted and the order
to dismissal is reversed on appeal, the movant loses his right to
present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Matilde Ramonal Binanay, testified that the deceased Matilde
Court). Judgment may, therefore, be rendered for appellant in the Seo Vda. de Ramonal was her aunt, and that after the death of
instant case. Matilde's husband, the latter lived with her in her parent's house
for eleven (11) years from 1958 to 1969. During those eleven (11)
years of close association the deceased, she acquired familiarity
Wherefore, the order appealed from is REVERSED and judgment
with her signature and handwriting as she used to accompany her
rendered allowing the probate of the holographic will of the
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals
testator Matilde Seo Vda. de Ramonal.2
from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde
The facts are as follows: Binanay) assisted the deceased in posting the records of the
accounts, and carried personal letters of the deceased to her
creditors.
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of
the deceased Matilde Seo Vda. de Ramonal, filed with the Matilde Ramonal Binanay further testified that at the time of the
Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for death of Matilde Vda. de Ramonal, she left a holographic will
probate of the holographic will of the deceased, who died on dated August 30, 1978, which was personally and entirely written,
January 16, 1990. dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the
deceased.
In the petition, respondents claimed that the deceased Matilde
Seo Vda. de Ramonal, was of sound and disposing mind when
she executed the will on August 30, 1978, that there was no fraud, Fiscal Rodolfo Waga testified that before he was appointed City
undue influence, and duress employed in the person of the Fiscal of Cagayan de Oro, he was a practicing lawyer, and
testator, and will was written voluntarily. handled all the pleadings and documents signed by the deceased
in connection with the proceedings of her late husband, as a
result of which he is familiar with the handwriting of the latter. He
The assessed value of the decedent's property, including all real testified that the signature appearing in the holographic will was
and personal property was about P400,000.00, at the time of her similar to that of the deceased, Matilde Seo Vda. de Ramonal,
death.4 but he can not be sure.

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal The fifth witness presented was Mrs. Teresita Vedad, an employee
filed an opposition5 to the petition for probate, alleging that the of the Department of Environment and Natural Resources, Region
holographic will was a forgery and that the same is even illegible. 10. She testified that she processed the application of the
This gives an impression that a "third hand" of an interested party deceased for pasture permit and was familiar with the signature
other than the "true hand" of Matilde Seo Vda. de Ramonal of the deceased, since the signed documents in her presence,
executed the holographic will. when the latter was applying for pasture permit.

Petitioners argued that the repeated dates incorporated or Finally, Evangeline Calugay, one of the respondents, testified that
appearing on will after every disposition is out of the ordinary. If she had lived with the deceased since birth, and was in fact
the deceased was the one who executed the will, and was not adopted by the latter. That after a long period of time she became
forced, the dates and the signature should appear at the bottom familiar with the signature of the deceased. She testified that the
after the dispositions, as regularly done and not after every signature appearing in the holographic will is the true and
disposition. And assuming that the holographic will is in the genuine signature of Matilde Seo Vda. de Ramonal.
handwriting of the deceased, it was procured by undue and
improper pressure and influence on the part of the beneficiaries,
or through fraud and trickery.1wphi1.nt The holographic will which was written in Visayan, is translated in
English as follows:
Respondents presented six (6) witnesses and various
documentary evidence. Petitioners instead of presenting their Instruction
evidence, filed a demurrer6 to evidence, claiming that
respondents failed to establish sufficient factual and legal basis
August 30, 1978
for the probate of the holographic will of the deceased Matilde
Seo Vda. de Ramonal.
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads: (Sgd) Matilde Vda de Ramonal

WHEREFORE, in view of the foregoing consideration, the August 30, 1978


Demurrer to Evidence having being well taken, same is granted,
and the petition for probate of the document (Exhibit "S") on the
2. Josefina Salcedo must be given 1,500 square meters at Pinikan
purported Holographic Will of the late Matilde Seo Vda. de
Street.
36

(Sgd) Matilde Vda de Ramonal It may be true that the rule of this article (requiring that three
witnesses be presented if the will is contested and only one if no
contest is had) was derived from the rule established for ordinary
August 30, 1978
testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v.
Francisco, 57 PHIL 742). But it can not be ignored that the
3. My jewelry's shall be divided among: requirement can be considered mandatory only in case of
ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law
1. Eufemia Patigas essential to their validity (Art. 805). Where the will is holographic,
no witness need be present (art. 10), and the rule requiring
2. Josefina Salcedo production of three witnesses must be deemed merely permissive
if absurd results are to be avoided.
3. Evangeline Calugay
Again, under Art. 811, the resort to expert evidence is conditioned
by the words "if the court deem it necessary", which reveal that
(Sgd) Matilde Vda de Ramonal what the law deems essential is that the court should be
convinced of the will's authenticity. Where the prescribed number
August 30, 1978 of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent
4. I bequeath my one (1) hectare land at Mandumol, Indahag to witness is available, or none of those produced is convincing, the
Evangeline R. Calugay court may still, and in fact it should resort to handwriting experts.
The duty of the court, in fine, is to exhaust all available lines of
(Sgd) Matilde Vda de Ramonal inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect.
August 30, 1978
Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in cannot be interpreted as to require the compulsory presentation
favor of Evangeline R. Calugay, Helen must continue with the Sta. of three witnesses to identify the handwriting of the testator,
Cruz, once I am no longer around. under penalty of the having the probate denied. No witness need
be present in the execution of the holographic will. And the rule
(Sgd) Matilde Vda de Ramonal requiring the production of three witnesses is merely permissive.
What the law deems essential is that the court is convinced of the
authenticity of the will. Its duty is to exhaust all available lines of
August 30, 1978 inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And
6. Bury me where my husband Justo is ever buried. because the law leaves it to the trial court to decide if experts are
still needed, no unfavorable inference can be drawn from a party's
failure to offer expert evidence, until and unless the court
(Sgd) Matilde Vda de Ramonal expresses dissatisfaction with the testimony of the lay
witnesses.10
August 30, 1978
According to the Court of Appeals, Evangeline Calugay, Matilde
Gene and Manuel: Ramonal Binanay and other witnesses definitely and in no
uncertain terms testified that the handwriting and signature in the
holographic will were those of the testator herself.
Follow my instruction in order that I will rest peacefully.
Thus, upon the unrebutted testimony of appellant Evangeline
Mama Calugay and witness Matilde Ramonal Binanay, the Court of
Appeals sustained the authenticity of the holographic will and the
Matilde Vda de Ramonal handwriting and signature therein, and allowed the will to
probate.

On October 9, 1995, the Court of Appeals, rendered


decision9 ruling that the appeal was meritorious. Citing the Hence, this petition.
decision in the case of Azaola vs. Singson, 109 Phil. 102, penned
by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, The petitioners raise the following issues:
the Court of Appeals held:
(1) Whether or not the ruling of the case of Azaola vs. Singson,
. . . even if the genuineness of the holographic will were 109 Phil. 102, relied upon by the respondent Court of Appeals,
contested, we are of the opinion that Article 811 of our present was applicable to the case.
civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no (2) Whether or not the Court of Appeals erred in holding that
witness may have been present at the execution of the private respondents had been able to present credible evidence
holographic will, none being required by law (art. 810, new civil to that the date, text, and signature on the holographic will written
code), it becomes obvious that the existence of witnesses entirely in the hand of the testatrix.
possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding (3) Whether or not the Court of Appeals erred in not analyzing the
and producing any three witnesses; they must be witnesses "who signatures in the holographic will of Matilde Seo Vda. de
know the handwriting and signature of the testator" and who can Ramonal.
declare (truthfully, of course, even if the law does not express)
"that the will and the signature are in the handwriting of the
testator." There may be no available witness acquainted with the In this petition, the petitioners ask whether the provisions of
testator's hand; or even if so familiarized, the witness maybe Article 811 of the Civil Code are permissive or mandatory. The
unwilling to give a positive opinion. Compliance with the rule of article provides, as a requirement for the probate of a contested
paragraph 1 of article 811 may thus become an impossibility. That holographic will, that at least three witnesses explicitly declare
is evidently the reason why the second paragraph of article 811 that the signature in the will is the genuine signature of the
prescribes that testator.1wphi1.nt

in the absence of any competent witness referred to in the We are convinced, based on the language used, that Article 811 of
preceding paragraph, and if the court deems it necessary, expert the Civil Code is mandatory. The word "shall" connotes a
testimony may be resorted to. mandatory order. We have ruled that "shall" in a statute
commonly denotes an imperative obligation and is inconsistent
with the idea of discretion and that the presumption is that the
As can be see, the law foresees, the possibility that no qualified word "shall," when used in a statute is mandatory.11
witness ma be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of
the will), and provides for resort to expert evidence to supply the Laws are enacted to achieve a goal intended and to guide against
deficiency. an evil or mischief that aims to prevent. In the case at bar, the
37

goal to achieve is to give effect to the wishes of the deceased and xxx xxx xxx
the evil to be prevented is the possibility that unscrupulous
individuals who for their benefit will employ means to defeat the
Q. In addition to collection of rentals, posting records of
wishes of the testator.
accounts of tenants and deed of sale which you said what else
did you do to acquire familiarity of the signature of Matilde Vda
So, we believe that the paramount consideration in the present De Ramonal?
petition is to determine the true intent of the deceased. An
exhaustive and objective consideration of the evidence is
A. Posting records.
imperative to establish the true intent of the testator.

Q. Aside from that?


It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of testator. In the case of Augusto Neri, clerk of A. Carrying letters.
court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said
court. He was not presented to declare explicitly that the Q. Letters of whom?
signature appearing in the holographic was that of the deceased.
A. Matilde.
Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the Q. To whom?
voter's affidavit, which was not even produced as it was no longer
available.
A. To her creditors.15

Matilde Ramonal Binanay, on the other hand, testified that:


xxx xxx xxx

Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City. Q. You testified that at time of her death she left a will. I am
Would you tell the court what was your occupation or how did showing to you a document with its title "tugon" is this the
Matilde Vda de Ramonal keep herself busy that time? document you are referring to?

A. Collecting rentals. A. Yes, sir.

Q. From where? Q. Showing to you this exhibit "S", there is that handwritten
"tugon", whose handwriting is this?

A. From the land rentals and commercial buildings at Pabayo-


Gomez streets.12 A. My Aunt.

xxx xxx xxx Q. Why do you say this is the handwriting of your aunt?

Q. Who sometime accompany her? A. Because I am familiar with her signature.16

A. I sometimes accompany her. What Ms. Binanay saw were pre-prepared receipts and letters of
the deceased, which she either mailed or gave to her tenants. She
did not declare that she saw the deceased sign a document or
Q. In collecting rentals does she issue receipts? write a note.

A. Yes, sir.13 Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal
xxx xxx xxx belongings of the deceased but was in the possession of Ms.
Binanay. She testified that:

Q. Showing to you the receipt dated 23 October 1979, is this the


one you are referring to as one of the receipts which she issued Q. Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a will you
to them?
said, yes?

A. Yes, sir.
A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal,


whose signature is that Mrs. Binanay? Q. Who was in possession of that will?

A. Matilde vda. De Ramonal. A. I.

Q. Since when did you have the possession of the will?


Q. Why do you say that is the signature of Matilde Vda. De
Ramonal?
A. It was in my mother's possession.
A. I am familiar with her signature.
Q. So, it was not in your possession?
Q. Now, you tell the court Mrs. Binanay, whether you know
Matilde vda de Ramonal kept records of the accounts of her A. Sorry, yes.
tenants?
Q. And when did you come into possession since as you said
A. Yes, sir. this was originally in the possession of your mother?

Q. Why do you say so? A. 1985.17

A. Because we sometimes post a record of accounts in behalf of xxx xxx xxx


Matilde Vda. De Ramonal.
Q. Now, Mrs. Binanay was there any particular reason why your
Q. How is this record of accounts made? How is this reflected? mother left that will to you and therefore you have that in your
possession?
A. In handwritten.14
38

A. It was not given to me by my mother, I took that in the notice that there is no retracing; there is no hesitancy and the
aparador when she died. signature was written on a fluid movement. . . . And in fact, the
name Eufemia R. Patigas here refers to one of the petitioners?
Q. After taking that document you kept it with you?
A. Yes, sir.
A. I presented it to the fiscal.
Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
Q. For what purpose?
marked as Exhibit X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you notice that?
A. Just to seek advice.
A. Yes, sir.21
Q. Advice of what?
Evangeline Calugay declared that the holographic will was
A. About the will.18 written, dated and signed in the handwriting of the testator. She
testified that:
In her testimony it was also evident that Ms. Binanay kept the fact
about the will from petitioners, the legally adopted children of the Q. You testified that you stayed with the house of the spouses
deceased. Such actions put in issue her motive of keeping the will Matilde and Justo Ramonal for the period of 22 years. Could you
a secret to petitioners and revealing it only after the death of tell the court the services if any which you rendered to Matilde
Matilde Seo Vda. de Ramonal. Ramonal?

In the testimony of Ms. Binanay, the following were established: A. During my stay I used to go with her to the church, to market
and then to her transactions.
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a
sickly person is that correct? Q. What else? What services that you rendered?

A. Yes, sir. A. After my college days I assisted her in going to the bank,
paying taxes and to her lawyer.
Q. She was up and about and was still uprightly and she could
walk agilely and she could go to her building to collect rentals, is Q. What was your purpose of going to her lawyer?
that correct?
A. I used to be her personal driver.
A. Yes, sir.19
Q. In the course of your stay for 22 years did you acquire
xxx xxx xxx familiarity of the handwriting of Matilde Vda de Ramonal?

Q. Now, let us go to the third signature of Matilde Ramonal. Do A. Yes, sir.


you know that there are retracings in the word Vda.?
Q. How come that you acquired familiarity?
A. Yes, a little. The letter L is continuous.
A. Because I lived with her since birth.22
Q. And also in Matilde the letter L is continued to letter D?
xxx xxx xxx
A. Yes, sir.
Q. Now, I am showing to you Exhibit S which is captioned
Q. Again the third signature of Matilde Vda de Ramonal the letter "tugon" dated Agosto 30, 1978 there is a signature here below
L in Matilde is continued towards letter D. item No. 1, will you tell this court whose signature is this?

A. Yes, sir. A. Yes, sir, that is her signature.

Q. And there is a retracing in the word Vda.? Q. Why do you say that is her signature?

A. Yes, sir.20 A. I am familiar with her signature.23

xxx xxx xxx So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she
lived with her since birth. She never declared that she saw the
Q. Now, that was 1979, remember one year after the alleged deceased write a note or sign a document.
holographic will. Now, you identified a document marked as
Exhibit R. This is dated January 8, 1978 which is only about eight
months from August 30, 1978. Do you notice that the signature The former lawyer of the deceased, Fiscal Waga, testified that:
Matilde Vda de Ramonal is beautifully written and legible?
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir the handwriting shows that she was very exhausted.
A. Yes, sir I know her because she is my godmother the husband
Q. You just say that she was very exhausted while that in 1978 is my godfather. Actually I am related to the husband by
she was healthy was not sickly and she was agile. Now, you said consanguinity.
she was exhausted?
Q. Can you tell the name of the husband?
A. In writing.
A. The late husband is Justo Ramonal.24
Q. How did you know that she was exhausted when you were not
present and you just tried to explain yourself out because of the
xxx xxx xxx
apparent inconsistencies?

Q. Can you tell this court whether the spouses Justo Ramonal
A. That was I think. (sic).
and Matilde Ramonal have legitimate children?

Q. Now, you already observed this signature dated 1978, the


A. As far as I know they have no legitimate children.25
same year as the alleged holographic will. In exhibit I, you will
39

xxx xxx xxx xxx xxx xxx

Q. You said after becoming a lawyer you practice your Q. Mr. Prosecutor, I heard you when you said that the signature
profession? Where? of Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A. Here in Cagayan de Oro City.
A. Yes, it is similar to the project of partition.
Q. Do you have services rendered with the deceased Matilde vda
de Ramonal? Q. So you are not definite that this is the signature of Matilde vda
de Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
A. I assisted her in terminating the partition, of properties.
partition which you have made?

Q. When you said assisted, you acted as her counsel? Any sort
A. That is true.30
of counsel as in what case is that, Fiscal?

From the testimonies of these witnesses, the Court of Appeals


A. It is about the project partition to terminate the property,
allowed the will to probate and disregard the requirement of three
which was under the court before.26
witnesses in case of contested holographic will, citing the
decision in Azaola vs. Singson,31ruling that the requirement is
xxx xxx xxx merely directory and not mandatory.

Q. Appearing in special proceeding no. 427 is the amended In the case of Ajero vs. Court of Appeals,32 we said that "the
inventory which is marked as exhibit N of the estate of Justo object of the solemnities surrounding the execution of wills is to
Ramonal and there appears a signature over the type written word close the door against bad faith and fraud, to avoid substitution
Matilde vda de Ramonal, whose signature is this? of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But
A. That is the signature of Matilde Vda de Ramonal. on the other hand, also one must not lose sight of the fact that it
is not the object of the law to restrain and curtail the exercise of
Q. Also in exhibit n-3, whose signature is this? the right to make a will.

A. This one here that is the signature of Mrs. Matilde vda de However, we cannot eliminate the possibility of a false document
Ramonal.27 being adjudged as the will of the testator, which is why if the
holographic will is contested, that law requires three witnesses to
declare that the will was in the handwriting of the deceased.
xxx xxx xxx

The will was found not in the personal belongings of the


Q. Aside from attending as counsel in that Special Proceeding deceased but with one of the respondents, who kept it even
Case No. 427 what were the other assistance wherein you were before the death of the deceased. In the testimony of Ms. Binanay,
rendering professional service to the deceased Matilde Vda de she revealed that the will was in her possession as early as 1985,
Ramonal? or five years before the death of the deceased.

A. I can not remember if I have assisted her in other matters but There was no opportunity for an expert to compare the signature
if there are documents to show that I have assisted then I can and the handwriting of the deceased with other documents
recall.28 signed and executed by her during her lifetime. The only chance
at comparison was during the cross-examination of Ms. Binanay
xxx xxx xxx when the lawyer of petitioners asked Ms. Binanay to compare the
documents which contained the signature of the deceased with
that of the holographic will and she is not a handwriting expert.
Q. Now, I am showing to you exhibit S which is titled "tugon", Even the former lawyer of the deceased expressed doubts as to
kindly go over this document, Fiscal Waga and tell the court the authenticity of the signature in the holographic will.
whether you are familiar with the handwriting contained in that
document marked as exhibit "S"?
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents
A. I am not familiar with the handwriting. written by the testator. The signature of the testator in some of
the disposition is not readable. There were uneven strokes,
Q. This one, Matilde Vda de Ramonal, whose signature is this? retracing and erasures on the will.

A. I think this signature here it seems to be the signature of Mrs. Comparing the signature in the holographic will dated August 30,
Matilde vda de Ramonal. 1978,33 and the signatures in several documents such as the
application letter for pasture permit dated December 30,
1980,34 and a letter dated June 16, 1978,35the strokes are different.
Q. Now, in item No. 2 there is that signature here of Matilde Vda In the letters, there are continuous flows of the strokes,
de Ramonal, can you tell the court whose signature is this? evidencing that there is no hesitation in writing unlike that of the
holographic will. We, therefore, cannot be certain that ruling
A. Well, that is similar to that signature appearing in the project holographic will was in the handwriting by the deceased.
of partition.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE.
Q. Also in item no. 3 there is that signature Matilde Vda de The records are ordered remanded to the court of origin with
Ramonal, can you tell the court whose signature is that? instructions to allow petitioners to adduce evidence in support of
their opposition to the probate of the holographic will of the
deceased Matilde Seo vda. de Ramonal.1wphi1.nt
A. As I said, this signature also seems to be the signature of
Matilde vda de Ramonal.
No costs.
Q. Why do you say that?
SO ORDERED.
A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court
whose signature is this?

A. The same is true with the signature in item no. 4. It seems that
they are similar.29
40

Significantly, the appellate court while finding as inconclusive the


matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will,
G.R. No. 76464 February 29, 1988 contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA proven. The appellate court based its finding on the facts that the
MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION document was not in the two safes in Adriana's residence, by the
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO testatrix going to the residence of Atty. Hervas to retrieve a copy
DE MOLO, petitioners, of the will left in the latter's possession, and, her seeking the
vs. services of Atty. Palma in order to have a new will drawn up. For
COURT OF APPEALS, PANFILO MALOTO AND FELINO reasons shortly to be explained, we do not view such facts, even
MALOTO, respondents. considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
SARMIENTO, J.:
There is no doubt as to the testamentary capacity of the testatrix
This is not the first time that the parties to this case come to us. and the due execution of the will. The heart of the case lies on the
In fact, two other cases directly related to the present one and issue as to whether or not the will was revoked by Adriana.
involving the same parties had already been decided by us in the
past. In G.R. No. L-30479, 1 which was a petition for certiorari and The provisions of the new Civil Code pertinent to the issue can be
mandamus instituted by the petitioners herein, we dismissed the found in Article 830.
petition ruling that the more appropriate remedy of the petitioners
is a separate proceeding for the probate of the will in question.
Pursuant to the said ruling, the petitioners commenced in the Art. 830. No will shall be revoked except in the following cases:
then Court of First Instance of Iloilo, Special Proceeding No. 2176,
for the probate of the disputed will, which was opposed by the (1) By implication of law; or
private respondents presently, Panfilo and Felino both surnamed
Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to (2) By some will, codicil, or other writing executed as provided in
this Court on a petition for review by certiorari. 2 Acting on the case of wills: or
said petition, we set aside the trial court's order and directed it to
proceed to hear the case on the merits. The trial court, after (3) By burning, tearing, cancelling, or obliterating the will with the
hearing, found the will to have already been revoked by the intention of revoking it, by the testator himself, or by some other
testatrix. Adriana Maloto, and thus, denied the petition. The person in his presence, and by his express direction. If burned,
petitioners appealed the trial court's decision to the Intermediate torn cancelled, or obliterated by some other person, without the
Appellate Court which, on June 7, 1985, affirmed the order. The express direction of the testator, the will may still be established,
petitioners' motion for reconsideration of the adverse decision and the estate distributed in accordance therewith, if its contents,
proved to be of no avail, hence, this petition. and due execution, and the fact of its unauthorized destruction,
cancellation, or obliteration are established according to the
For a better understanding of the controversy, a factual account Rules of Court. (Emphasis Supplied.)
would be a great help.
It is clear that the physical act of destruction of a will, like burning
On October 20, 1963, Adriana Maloto died leaving as heirs her in this case, does not per se constitute an effective revocation,
niece and nephews, the petitioners Aldina Maloto-Casiano and unless the destruction is coupled with animus revocandi on the
Constancio, Maloto, and the private respondents Panfilo Maloto part of the testator. It is not imperative that the physical
and Felino Maloto. Believing that the deceased did not leave destruction be done by the testator himself. It may be performed
behind a last will and testament, these four heirs commenced on by another person but under theexpress direction and in
November 4, 1963 an intestate proceeding for the settlement of the presence of the testator. Of course, it goes without saying
their aunt's estate. The case was instituted in the then Court of that the document destroyed must be the will itself.
First Instance of Iloilo and was docketed as Special Proceeding
No. 1736. However, while the case was still in progress, or to be In this case, while animus revocandi or the intention to revoke,
exact on February 1, 1964, the parties Aldina, Constancio, may be conceded, for that is a state of mind, yet that requisite
Panfilo, and Felino executed an agreement of extrajudicial alone would not suffice. "Animus revocandi is only one of the
settlement of Adriana's estate. The agreement provided for the necessary elements for the effective revocation of a last will and
division of the estate into four equal parts among the parties. The testament. The intention to revoke must be accompanied by the
Malotos then presented the extrajudicial settlement agreement to overt physical act of burning, tearing, obliterating, or cancelling
the trial court for approval which the court did on March 21, 1964. the will carried out by the testator or by another person in his
That should have signalled the end of the controversy, but, presence and under his express direction. There is paucity of
unfortunately, it had not. evidence to show compliance with these requirements. For one,
the document or papers burned by Adriana's maid, Guadalupe,
Three years later, or sometime in March 1967, Atty. Sulpicio was not satisfactorily established to be a will at all, much less the
Palma, a former associate of Adriana's counsel, the late Atty. will of Adriana Maloto. For another, the burning was not proven to
Eliseo Hervas, discovered a document entitled "KATAPUSAN have been done under the express direction of Adriana. And then,
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and the burning was not in her presence. Both witnesses, Guadalupe
purporting to be the last will and testament of Adriana. Atty. and Eladio, were one in stating that they were the only ones
Palma claimed to have found the testament, the original copy, present at the place where the stove (presumably in the kitchen)
while he was going through some materials inside the cabinet was located in which the papers proffered as a will were burned.
drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance The respondent appellate court in assessing the evidence
of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are presented by the private respondents as oppositors in the trial
still named as heirs in the said will, Aldina and Constancio are court, concluded that the testimony of the two witnesses who
bequeathed much bigger and more valuable shares in the estate testified in favor of the will's revocation appear "inconclusive."
of Adriana than what they received by virtue of the agreement of We share the same view. Nowhere in the records before us does it
extrajudicial settlement they had earlier signed. The will likewise appear that the two witnesses, Guadalupe Vda. de Corral and
gives devises and legacies to other parties, among them being Eladio Itchon, both illiterates, were unequivocably positive that
the petitioners Asilo de Molo, the Roman Catholic Church of the document burned was indeed Adriana's will. Guadalupe, we
Molo, and Purificacion Miraflor. think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the
Thus, on May 24, 1967, Aldina and Constancio, joined by the other other hand, obtained his information that the burned document
devisees and legatees named in the will, filed in Special was the will because Guadalupe told him so, thus, his testimony
Proceeding No. 1736 a motion for reconsideration and annulment on this point is double hearsay.
of the proceedings therein and for the allowance of the will When
the trial court denied their motion, the petitioner came to us by At this juncture, we reiterate that "(it) is an important matter of
way of a petition for certiorari and mandamus assailing the orders public interest that a purported win is not denied legalization on
of the trial court . 3 As we stated earlier, we dismissed that dubious grounds. Otherwise, the very institution of testamentary
petition and advised that a separate proceeding for the probate of succession will be shaken to its very foundations ...."4
the alleged will would be the appropriate vehicle to thresh out the
matters raised by the petitioners.
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue that
41

the same is already barred by res adjudicata. They claim that this
bar was brought about by the petitioners' failure to appeal timely
from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their
(petitioners') motion to reopen the case, and their prayer to annul
the previous proceedings therein and to allow the last will and
testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present


controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final
former judgment; (2) the former judgment was rendered by a
court having jurisdiction over the subject matter and the parties;
(3) the former judgment is a judgment on the merits; and (4) there
is, between the first and the second action, Identity of parties, of
subject matter, and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered


insofar as the probate of Adriana Maloto's will is concerned. The
decision of the trial court in Special Proceeding No. 1736,
although final, involved only the intestate settlement of the estate
of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not
be properly done in an intestate settlement of estate proceeding
which is predicated on the assumption that the decedent left no
will. Thus, there is likewise no Identity between the cause of
action in intestate proceeding and that in an action for probate.
Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the
private respondents on this score can not be sustained.

One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial bulk
of the properties mentioned in the will had been disposed of:
while an insignificant portion of the properties remained at the
time of death (of the testatrix); and, furthermore, more valuable
properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this
special proceeding, they could only be appropriately taken up
after the will has been duly probated and a certificate of its
allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and


SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private
respondents.

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.
42

G.R. No. L-26317 January 29, 1927 destroyed by any other person without the knowledge or
authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly,
Estate of Miguel Mamuyac, deceased. being weak or strong according to the circumstances, is never
FRANCISCO GAGO, petitioner-appellant, conclusive, but may be overcome by proof that the will was not
vs. destroyed by the testator with intent to revoke it.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-
appellees. In view of the fat that the original will of 1919 could not be found
after the death of the testator Miguel Mamuyac and in view of the
positive proof that the same had been cancelled, we are forced to
JOHNSON, J.: the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to
The purpose of this action was to obtain the probation of a last probate a will the burden of proofs is upon the proponent clearly
will and testament of Miguel Mamuyac, who died on the 2d day of to establish not only its execution but its existence. Having
January, 1922, in the municipality of Agoo of the Province of La proved its execution by the proponents, the burden is on the
Union. It appears from the record that on or about the 27th day of contestant to show that it has been revoked. In a great majority of
July, 1918, the said Miguel Mamuyac executed a last will and instances in which wills are destroyed for the purpose of revoking
testament (Exhibit A). In the month of January, 1922, the said them there is no witness to the act of cancellation or destruction
Francisco Gago presented a petition in the Court of First Instance and all evidence of its cancellation perishes with the testator.
of the Province of La Union for the probation of that will. The Copies of wills should be admitted by the courts with great
probation of the same was opposed by Cornelio Mamuyac, caution. When it is proven, however, by proper testimony that a
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil will was executed in duplicate and each copy was executed with
cause No. 1144, Province of La Union). After hearing all of the all the formalities and requirements of the law, then the duplicate
parties the petition for the probation of said will was denied by may be admitted in evidence when it is made to appear that the
the Honorable C. M. Villareal on the 2d day of November, 1923, original has been lost and was not cancelled or destroyed by the
upon the ground that the deceased had on the 16th day of April, testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1
1919, executed a new will and testament.
After a careful examination of the entire record, we are fully
On the 21st day of February, 1925, the present action was persuaded that the will presented for probate had been cancelled
commenced. Its purpose was to secure the probation of the said by the testator in 1920. Therefore the judgment appealed from is
will of the 16th day of April, 1919 (Exhibit 1). To said petition hereby affirmed. And without any finding as to costs, it is so
Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and ordere
Catalina Mamuyac presented their oppositions, alleging (a) that
the said will is a copy of the second will and testament executed
by the said Miguel Mamuyac; (b) that the same had been
cancelled and revoked during the lifetime of Miguel Mamuyac and
(c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R.


Teodoro, judge, after hearing the respective parties, denied the
probation of said will of April 16, 1919, upon the ground that the
same had been cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found that the
following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in


the possession of the deceased testator Miguel Mamuyac, who
revoked it before his death as per testimony of witness Jose
Fenoy, who typed the will of the testator on April 16, 1919, and
Carlos Bejar, who saw on December 30, 1920, the original Exhibit
A (will of 1919) actually cancelled by the testator Miguel
Mamuyac, who assured Carlos Bejar that inasmuch as he had
sold him a house and the land where the house was built, he had
to cancel it (the will of 1919), executing thereby a new testament.
Narcisa Gago in a way corroborates the testimony of Jose Fenoy,
admitting that the will executed by the deceased (Miguel
Mamuyac) in 1919 was found in the possession of father Miguel
Mamuyac. The opponents have successfully established the fact
that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney for
the opponents, testified that the original Exhibit A could not be
found. For the foregoing consideration and for the reason that the
original of Exhibit A has been cancelled by the deceased father
Miguel Mamuyac, the court disallows the probate of Exhibit A for
the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in


not finding from the evidence that the will in question had been
executed with all the formalities required by the law; that the
same had been revoked and cancelled in 1920 before his death;
that the said will was a mere carbon copy and that the oppositors
were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there


is positive proof, not denied, which was accepted by the lower
court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of
a will to be preserved. It therefore becomes difficult at times to
prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain
unproved of be inferred from evidence showing that after due
search the original will cannot be found. Where a will which
cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that
the testator had ready access to the will and it cannot be found
after his death. It will not be presumed that such will has been
43

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