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-42258 January 15, 1936

In re Will of the deceased Leoncia Tolentino.

VICTORIO PAYAD, petitioner-appellant,
vs.
AQUILINA TOLENTINO, oppositor-appellant.

Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.

Leodegario Azarraga for oppositor-appellant.

GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying the probate of the
alleged will of Leoncia Tolentino, deceased. That court found that the will in question was
executed by the deceased on the date appearing thereon, September 7, 1933, one day
before the death of the testatrix, contrary to the contention of the oppositor that it was
executed after her death. The court, however, denied probate on the ground that the
attestation clause was not in conformity with the requirements of law in that it is not stated
therein that the testatrix caused Attorney Almario to write her name at her express
direction.

The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in
not finding that the will in question was executed after the death of Leoncia Tolentino, or
that she was mentally and physically incapable of executing said will one day before her
death. After a careful examination of the evidence on these points we find no reason for
setting aside the conclusion of the trial court as set forth above. The assignments of the
oppositor-appellant are therefore overruled.

As to the contention of the petitioner-appellant, as stated above, the trial court denied
probate of the will on the sole ground that the attestation clause does not state that the
testratrix requested Attorney Almario to write her name.

The last paragraph of the questioned will reads in part as follows:

En prueba de todo lo cual, firmo el presente testamento con mi marcha digital, poque no
puedo estampar mi firma a causa de mi debilidad, rogando al abogado M. Almario que
poga mi nombre en el sitio donde he de estampar mi marcha digital . . ..

The evidence of record established the fact that Leoncia Tolentino, assisted by Attorney
Almario, placed her thumb mark on each and every age of time questioned will and the
said attorney merely wrote her name to indicate the place where she placed said thumb
mark. In other words Attorney Almario did not sign for the testatrix. She signed for placing
her thumb mark on each and every page thereof "A statute requiring a will to be 'signed' is
satisfied if the signature is made by the testator's mark." (Quoted by this court from 28
R.C.L., p, 117; De Gala vs. Gonzales and Ona, 53 Phil., 104, 108.) It is clear, therefore,
that it was not necessary that the attestation clause in question should state that the
testatrix requested Attorney Almario to sign her name inasmuch as the testratrix signed
the will in question in accordance with law.

The appealed order of the trial court is reversed and the questioned will of Leoncia
Tolentino, deceased, is hereby admitted to probate with the costs of this appeal against
the oppositor-appellant.

EN BANC
G.R. No. 1641 January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.

Ledesma, Sumulong and Quintos for appellant.

Del-Pan, Ortigas and Fisher for appellees.

CARSON, J.:

In these proceedings probate was denied the last will and testament of Macario Jaboneta,
deceased, because the lower court was of the opinion from the evidence adduced at the
hearing that Julio Javellana, one of the witnesses, did not attach his signature thereto in
the presence of Isabelo Jena, another of the witnesses, as required by the provisions of
section 618 of the Code of Civil Procedure.

The following is a copy of the evidence which appears of record on this particular point,
being a part of the testimony of the said Isabeo Jena:

Q. 1641 Who first signed the will?

A. 1641 I signed it first, and afterwards Aniceto and the others.

Q. 1641 Who were those others to whom you have just referred?

A. 1641 After the witness Aniceto signed the will I left the house, because I was
in a hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his
hand in position ready to sign (en actitud de firmar). I believe he signed, because he was
at the table. . . .

Q. 1641 State positively whether Julio Javellana did or did not sign as a witness
to the will.

A. 1641 I can't say certainly, because as I was leaving the house I saw Julio
Javellana with the pen in his hand, in position ready to sign. I believe he signed.

Q. 1641 Why do you believe Julio Javellana signed?

A. 1641 Because he had the pen in his hand, which was resting on the paper,
though I did not actually see him sign.

Q. 1641 Explain this contradictory statement.

A. 1641 After I signed I asked permission to leave, because I was in a hurry,
and while I was leaving Julio had already taken the pen in his hand, as it appeared, for the
purpose of signing, and when I was near the door I happened to turn my face and I saw
that he had his hand with the pen resting on the will, moving it as if for the purpose of
signing.

Q. 1641 State positively whether Julio moved his hand with the pen as if for the
purpose of signing, or whether he was signing

A. I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless, found the
following facts:

On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as his
will:

Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and
Isabelo Jena as witnesses, executed the said document as his will. They were all together,
and were in the room where Jaboneta was, and were present when he signed the
document, Isabelo Jena signing afterwards as a witness, at his request, and in his
presence and in the presence of the other two witnesses. Aniceto Jalbuena then signed
as a witness in the presence of the testator, and in the presence of the other two persons
who signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his
hat and left the room. As he was leaving the house Julio Javellana took the pen in his
hand and put himself in position to sign the will as a witness, but did not sign in the
presence of Isabelo Jena; but nevertheless, after Jena had left the room the said Julio
Javellana signed as a witness in the presence of the testator and of the witness Aniceto
Jalbuena.

We can not agree with so much of the above finding of facts as holds that the signature of
Javellana was not signed in the presence of Jena, in compliance with the provisions of
section 618 of the Code of Civil Procedure. The fact that Jena was still in the room when
he saw Javellana moving his hand and pen in the act of affixing his signature to the will,
taken together with the testimony of the remaining witnesses which shows that Javellana
did in fact there and then sign his name to the will, convinces us that the signature was
affixed in the presence of Jena. The fact that he was in the act of leaving, and that his
back was turned while a portion of the name of the witness was being written, is of no
importance. He, with the other witnesses and the testator, had assembled for the purpose
of executing the testament, and were together in the same room for that purpose, and at
the moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper direction, and without
any physical obstruction to prevent his doing so, therefore we are of opinion that the
document was in fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the
testator is said to be that the testator may have ocular evidence of the identity of the
instrument subscribed by the witness and himself, and the generally accepted tests of
presence are vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p.
599, and cases there cited.)

In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the
witnesses are together for the purpose of witnessing the execution of the will, and in a
position to actually see the testator write, if they choose to do so; and there are many
cases which lay down the rule that the true test of vision is not whether the testator
actually saw the witness sign, but whether he might have seen him sign, considering his
mental and physical condition and position at the time of the subscription.
(Spoonemore vs. Cables, 66 Mo., 579.)

The principles on which these cases rest and the tests of presence as between the
testator and the witnesses are equally applicable in determining whether the witnesses
signed the instrument in the presence of each other, as required by the statute, and
applying them to the facts proven in these proceedings we are of opinion that the statutory
requisites as to the execution of the instrument were complied with, and that the lower
court erred in denying probate to the will on the ground stated in the ruling appealed from.

We are of opinion from the evidence of record that the instrument propounded in these
proceedings was satisfactorily proven to be the last will and testament of Macario
Jaboneta, deceased, and that it should therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs, and
after twenty days the record will be returned to the court form whence it came, where the
proper orders will be entered in conformance herewith. So ordered.

EN BANC

G.R. No. L-5971 February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,
vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

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 Pedro Rimando, deceased, is affirmed with costs
of this instance against the appellant.

G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF
DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of Southern Leyte,
(Branch III, Maasin), respondent.

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

This is a petition for review of the orders issued by the Court of First Instance of Southern
Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition
for Probate of the Will of Dorotea Perez, Deceased; Apolonio Taboada, Petitioner", which
denied the probate of the will, the motion for reconsideration and the motion for
appointment of a special administrator.

In the petition for probate filed with the respondent court, the petitioner attached the
alleged last will and testament of the late Dorotea Perez. Written in the Cebuano-Visayan
dialect, the will consists of two pages. The first page contains the entire testamentary
dispositions and is signed at the end or bottom of the page by the testatrix alone and at
the left hand margin by the three (3) instrumental witnesses. The second page which
contains the attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left hand margin by the
testatrix.

Since no opposition was filed after the petitioner's compliance with the requirement of
publication, the trial court commissioned the branch clerk of court to receive the
petitioner's evidence. Accordingly, the petitioner submitted his evidence and presented
Vicente Timkang, one of the subscribing witnesses to the will, who testified on its
genuineness and due execution.

The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned
order denying the probate of the will of Dorotea Perez for want of a formality in its
execution. In the same order, the petitioner was also required to submit the names of the
intestate heirs with their corresponding addresses so that they could be properly notified
and could intervene in the summary settlement of the estate.

Instead of complying with the order of the trial court, the petitioner filed a manifestation
and/or motion, ex parte praying for a thirty-day period within which to deliberate on any
step to be taken as a result of the disallowance of the will. He also asked that the ten-day
period required by the court to submit the names of intestate heirs with their addresses be
held in abeyance.

The petitioner filed a motion for reconsideration of the order denying the probate of the will.
However, the motion together with the previous manifestation and/or motion could not be
acted upon by the Honorable Ramon C. Pamatian due to his transfer to his new station at
Pasig, Rizal. The said motions or incidents were still pending resolution when respondent
Judge Avelino S. Rosal assumed the position of presiding judge of the respondent court.

Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the
manifestation and/or motion filed ex parte. In the same order of denial, the motion for the
appointment of special administrator was likewise denied because of the petitioner's
failure to comply with the order requiring him to submit the names of' the intestate heirs
and their addresses.

The petitioner decided to file the present petition.

For the validity of a formal notarial will, does Article 805 of the Civil Code require that the
testatrix and all the three instrumental and attesting witnesses sign at the end of the will
and in the presence of the testatrix and of one another?

Article 805 of the Civil Code provides:

Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.

The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except
the last, on the left margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.

The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the lacier witnesses and signed the will and the pages thereof in the
presence of the testator and of one another.

If the attestation clause is in a language not known to the witnesses, it shall be interpreted
to the witnesses, it shall be interpreted to them.

The respondent Judge interprets the above-quoted provision of law to require that, for a
notarial will to be valid, it is not enough that only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another because the attesting witnesses to a will
attest not merely the will itself but also the signature of the testator. It is not sufficient
compliance to sign the page, where the end of the will is found, at the left hand margin of
that page.

On the other hand, the petitioner maintains that Article 805 of the Civil Code does not
make it a condition precedent or a matter of absolute necessity for the extrinsic validity of
the wig that the signatures of the subscribing witnesses should be specifically located at
the end of the wig after the signature of the testatrix. He contends that it would be absurd
that the legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or particular location
wherein the signatures are found is consistent with good faith and the honest frailties of
human nature.

We find the petition meritorious.

Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at
its end by the testator himself or by the testator's name written by another person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.

It must be noted that the law uses the terms attested and subscribedAttestation consists
in witnessing the testator's execution of the will in order to see and take note mentally that
those things are, done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the 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. (Ragsdale v. Hill, 269 SW 2d 911).

Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies the purpose of
Identification.

The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.

While perfection in the drafting of a will may be desirable, unsubstantial departure from
the usual forms should be ignored, especially where the authenticity of the will is not
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449).

The law is to be liberally construed, "the underlying and fundamental objective permeating
the provisions on the law on wills in this project consists in the liberalization of the manner
of their execution with the end in view of giving the testator more freedom in expressing
his last wishes but with sufficient safeguards and restrictions to prevent the commission of
fraud and the exercise of undue and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency in respect to the formalities in the
execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were not
for the defect in the place of signatures of the witnesses, he would have found the
testimony sufficient to establish the validity of the will.

The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly
Identified by subscribing witness Vicente Timkang to be the same will executed by the
testatrix. There was no question of fraud or substitution behind the questioned order.

We have examined the will in question and noticed that the attestation clause failed to
state the number of pages used in writing the will. This would have been a fatal defect
were it not for the fact that, in this case, it is discernible from the entire wig that it is really
and actually composed of only two pages duly signed by the testatrix and her instrumental
witnesses. As earlier stated, the first page which contains the entirety of the testamentary
dispositions is signed by the testatrix at the end or at the bottom while the instrumental
witnesses signed at the left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment. The acknowledgment itself
states that "This Last Will and Testament consists of two pages including this page".

In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following
observations with respect to the purpose of the requirement that the attestation clause
must state the number of pages used:

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No.
2645, which requires that the attestation clause shall state the number of pages or sheets
upon which the win is written, which requirement has been held to be mandatory as an
effective safeguard against the possibility of interpolation or omission of some of the
pages of the will to the prejudice of the heirs to whom the property is intended to be
bequeathed (In re will of Andrada, 42 Phil., 180; Uy Coque vs. Navas L. Sioca, 43 Phil.
405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs.
Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will if
the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or
examination of the will itself. But here the situation is different. While the attestation clause
does not state the number of sheets or pages upon which the will is written, however, the
last part of the body of the will contains a statement that it is composed of eight pages,
which circumstance in our opinion takes this case out of the rigid rule of construction and
places it within the realm of similar cases where a broad and more liberal view has been
adopted to prevent the will of the testator from being defeated by purely technical
considerations.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar
liberal approach:

... Impossibility of substitution of this page is assured not only (sic) 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 fun 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.

WHEREFORE, the present petition is hereby granted. The orders of the respondent court
which denied the probate of tile will, the motion for reconsideration of the denial of probate,
and the motion for appointment of a special administrator are set aside. The respondent
court is ordered to allow the probate of the wig and to conduct further proceedings in
accordance with this decision. No pronouncement on costs.

SO ORDERED.

Melencio-Herrera (Acting Chairperson), Plana, Vasquez and Relova, JJ., concur.

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

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.

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

Appeal from an order of the Court of First Instance of Manila admitting to probate the
document and its duplicate, marked as Exhibits "A" and "A-1", as the true last will and
testament of Josefa Villacorte, deceased, and appointing as executor Celso Icasiano, the
person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte,
deceased, and for the appointment of petitioner Celso Icasiano as executor thereof.

The court set the proving of the alleged will for November 8, 1958, and caused notice
thereof to be published for three (3) successive weeks, previous to the time appointed, in
the newspaper "Manila chronicle", and also caused personal service of copies thereof
upon the known heirs.

On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition;
and on November 10, 1958, she petitioned to have herself appointed as a special
administrator, to which proponent objected. Hence, on November 18, 1958, the court
issued an order appointing the Philippine Trust Company as special administrator. 1ä wphï 1.ñë t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation
adopting as his own Natividad's opposition to the probate of the alleged will.

On March 19, 1959, the petitioner proponent commenced the introduction of his evidence;
but on June 1, 1959, he filed a motion for the admission of an amended and supplemental
petition, alleging that the decedent left a will executed in duplicate 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,
oppositors Natividad Icasiano de Gomez and Enrique Icasiano filed their joint opposition
to the admission of the amended and supplemental petition, but by order of July 20, 1959,
the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano filed
her amended opposition. Thereafter, the parties presented their respective evidence, and
after several hearings the court issued the order admitting the will and its duplicate to
probate. From this order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is contrary to law and the
evidence.

The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the
City of Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte
executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa
Icasiano at Pedro Guevara Street, Manila, published before and attested by three
instrumental witnesses, namely: attorneys Justo P. Torres, Jr. and Jose V. Natividad, and
Mr. Vinicio B. Diy; 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; and that the will was actually prepared by attorney
Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge
Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution
of the decedent's last will and testament, attorneys Torres and Natividad were in the
Philippines at the time of the hearing, and both testified as to the due execution and
authenticity of the said will. So did the Notary Public before whom the will was
acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin
Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and
testament at his house in Baliuag, Bulacan, but he brought only one original and one
signed copy to Manila, retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with
the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed
at 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 and supplemental petition and marked as Exhibit "A-1" is signed
by the testatrix and her three attesting witnesses in each and every page.

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 page thereof by the testatrix herself and attested and subscribed by the three
mentioned witnesses in the testatrix's presence and in that of one another as witnesses
(except for the missing signature of attorney Natividad on page three (3) of the original);
that pages of the original and duplicate of said will were duly numbered; that the
attestation clause thereof contains all the 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 attestation clause is in a language also known to
and spoken by the witnesses; that the will was executed on one single occasion in
duplicate copies; and that both the original and the duplicate copies were duly
acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2,
1956.

Witness Natividad who testified on his failure to sign page three (3) of the original, admits
that he may have lifted two pages instead of one when he signed the same, but affirmed
that page three (3) was signed in his presence.

Oppositors-appellants in turn introduced expert testimony to the effect that the signatures
of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or
affixed on the same occasion as the original, and further aver that granting that the
documents were genuine, they were executed through mistake and with undue influence
and pressure because the testatrix was deceived into adopting as her last will and
testament the wishes of those who will stand to benefit from the provisions of the will, as
may be inferred from the facts and circumstances surrounding the execution of the will
and the provisions and 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 oppositors-appellants are enjoined not to look for other
properties not mentioned in the will, and not to oppose the probate of it, on penalty of
forfeiting their share in the portion of free disposal.

We have examined the record and are satisfied, as the trial court was, that the testatrix
signed both original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will
spontaneously, on the same in the presence of the three attesting witnesses, the notary
public who acknowledged the will; and Atty. Samson, who actually prepared the
documents; that the will and its duplicate were executed in Tagalog, a language known to
and spoken by both the testator and the witnesses, and read to and by the testatrix and
Atty. Fermin Samson, together before they were actually signed; that the attestation
clause is also in a language 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 not written by the same had which wrote the
signatures in the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of the
paucity of the standards used by him to support the conclusion that the differences
between the standard and questioned signatures are beyond the writer's range of normal
scriptural variation. The expert has, in fact, used as standards only three other signatures
of the testatrix besides those affixed to the original of the testament (Exh. A); and we feel
that with so few standards the expert's opinion and the signatures in the duplicate could
not be those of the testatrix becomes extremely hazardous. This is particularly so since
the comparison charts Nos. 3 and 4 fail to show convincingly that the are radical
differences that would justify the charge of forgery, taking into account the advanced age
of the testatrix, the evident variability of her signatures, and the effect of writing fatigue,
the duplicate being signed right the original. These, factors were not discussed by the
expert.

Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering the standard and challenged writings
were affixed to different kinds of paper, with different surfaces and reflecting power. On
the whole, therefore, we do not find the testimony of the oppositor's expert sufficient to
overcome that of the notary and the two instrumental witnesses, Torres and Natividad (Dr.
Diy being in the United States during the trial, did not testify).

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.

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,

vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.

Nestor P. Mondok for petitioner.

Lazaro Padong for private respondents.

PUNO, J.:

This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the
Court of appeals in CA-G.R. CV No. 19071, disallowing probate of the Last Will and
1

Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of
property. She also left a Last Will and Testament, dated October 30, 1972, and a Codicil
thereto, dated July 24, 1973. Both documents contained the thumbmarks of decedent.
They were also signed by three (3) attesting witnesses each, and acknowledged before
Tomas A. Tolete, then the Municipal Judge and Notary Public Ex-Officio of Bauko, Mt.
Province.

Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the
RTC of Bontoc, Mt. Province, Br. 36. He died during the pendency of the proceedings,
2

and was duly substituted by petitioner. Private respondents, relatives of decedent,

opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil
were written in Ilocano, a dialect that decedent did not know; that decedent was mentally
incapacitated to execute the two documents because of her advanced age, illness and
deafness; that decedent’s thumbmarks were procured through fraud and undue influence;
and that the codicil was not executed in accordance with law.

On June 23, 1988, the trial court rendered judgment on the case, approving and allowing
decedent’s will and its codicil. The decision was appealed to and reversed by the
respondent Court of Appeals. It held:

. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil
Code but for one crucial factor of discrepancy in the color of ink when the instrumental
witnesses affixed their respective signatures. When subjected to cross-examination,
Codcodio Nacnas as witness testified as follows:

Q And all of you signed on the same table?

A Yes, sir.

Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and "B-1" which is
the testament was passed around all of you so that each of you will sign consecutively?

A Yes, sir.

Q Who was the first to sign?

A Calibia Lingdan Bulanglang.

Q After Calibia Lingdan Bulanglang was made to sign — I withdraw the question. How did
Calibia Lingdan Bulanglang sign the last will and testament?

A She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete
directed her hand or her thumb to her name.
Q After she signed, who was the second to sign allegedly all of you there present?

A Jose Becyagen.

Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?

A Ballpen.

Q And after Jose Becyagen signed his name with the ballpen, who was the next to sign?

A Me, sir.

Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and "B-1" plus
the ballpen which used to sign so that you could sign your name, is that correct?

A Yes, sir.

Q And then after you signed, who was the next to sign the document, Exhibit "B" and
"B-1"?

A Hilario Coto-ong.

Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and the ballpen
so that he could sign his name as witness to the document, is it not?

A Yes, sir.

Q And that is the truth and you swear that to be the truth before the Honorable Court?

ATTY. DALOG:

He already testified under oath, Your Honor.

COURT:

Witness may answer

A Yes, sir.

For his part, Obanan Ticangan likewise admitted during cross-examination in regard to
the codicil that:

Q When you signed Exhibit "D" and "D-1", did you all sign with the same ballpen?
A One.

Such admissions from instrumental witnesses are indeed significant since they point to no
other conclusion than that the documents were not signed by them in their presence but
on different occasions since the same ballpen used by them supposedly in succession
could not have produced a different color from blue to black and from black to blue. In fact,
the attestation clause followed the same pattern. The absurd sequence was repeated
when they signed the codicil, for which reason, We have no other alternative but to
disallow the Last Will and Codicil. Verily, if the witnesses and testatrix used the same
ballpen, then their signatures would have been in only one color, not in various ones as
shown in the documents. Moreover, the signatures, in different colors as they are, appear
to be of different broadness, some being finer than the others, indicating that, contrary to
what the testamentary witnesses declared on the witness stand, not only one ballpen was
used, and, therefore, showing that the documents were not signed by the testatrix and
instrumental witnesses in the presence of one another. . . " (Rollo, pp. 44-46. Citations
omitted.)

Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion
was denied by the respondent court in its Order, dated May 24, 1990.

Thus, this appeal by petitioner who now puts in issue the correctness of the respondent
court’s conclusion that both decedent’s will and codicil were not subscribed by the
witnesses in the presence of the testator and of one another, contrary to the requirements
of Article 805 of the Civil Code. He contends that:

1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISION OF THE SUPREME COURT BY CONCLUDING BASED ON PURE
SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF
JUDGE TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND
THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG WERE SIGNED BY
HER AND BY HER INSTRUMENTAL WITNESSES ON DIFFERENT OCCASIONS;

2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF

SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT BY DISREGARDING THE PROBATIVE
VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND TESTAMENT AND
THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.

The petition must fail.

The question in the case at bench is one of fact: whether or not, based on the evidence
submitted, respondent appellate court erred in concluding that both decedent’s Last Will
and Testament, and its Codicil were subscribed by the instrumental witnesses on
separate occasions. As a general rule, factual findings of the Court of Appeals are
considered final and conclusive, and cannot be reviewed on appeal to this court. In the
present instance, however, there is reason to make an exception to that rule, since the
finding of the respondent court is contrary to that of the trial court, viz.:

. . . (Private respondents) pointed out however, that the assertions of petitioner’s

witnesses are rife with contradictions, particularly the fact that the latter’s signatures on
the documents in issue appear to have been written in ballpens of different colors contrary
to the statements of said witnesses that all of them signed with only one ballpen. The
implication is that the subscribing witnesses to the Will and Codicil, and the testatrix did
not simultaneously sign each of the documents in one sitting but did it piecemeal — a
violation of Art. 805 of the Code. This conclusion of the (private respondents) is purely
circumstantial. From this particular set of facts, numerous inferences without limits can be
drawn depending on which side of the fence one is on. For instance, considering the time
interval that elapsed between the making of the Will and Codicil, and up to the filing of the
petition for probate, the possibility is not remote that one or two of the attesting witnesses
may have forgotten certain details that transpired when they attested the documents in
question . . . (Rollo, pp. 36-37.)

A review of the facts and circumstances upon which respondent Court of Appeals based
its impugned finding, however, fails to convince us that the testamentary documents in
question were subscribed and attested by the instrumental witnesses during a single
occasion.

As sharply noted by respondent appellate court, the signatures of some attesting

witnesses in decedent’s will and its codicil were written in blue ink, while the others were
in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses
testified that two pens were used by the signatories on the two documents. In fact, two (2)
of petitioner’s witnesses even testified that only one (1) ballpen was used in signing the
two testamentary documents.

It is accepted that there are three sources from which a tribunal may properly acquire
knowledge for making its decisions, namely: circumstantial evidence, testimonial evidence,
and real evidence or autoptic proference. Wigmore explains these sources as follows:

If, for example, it is desired to ascertain whether the accused has lost his right hand and
wears an iron hook in place of it, one source of belief on the subject would be the
testimony of a witness who had seen the arm; in believing this testimonial evidence, there
is an inference from the human assertion to the fact asserted. A second source of belief
would be the mark left on some substance grasped or carried by the accused; in believing
this circumstantial evidence, there is an inference from the circumstance to the thing
producing it. A third source of belief remains, namely, the inspection by the tribunal of the
accused’s arm. This source differs from the other two in omitting any step of conscious
inference or reasoning, and in proceeding by direct self-perception, or autopsy.

It is unnecessary, for present purposes, to ask whether this is not, after all, a third source
of inference, i.e., an inference from the impressions or perceptions of the tribunal to the
objective existence of the thing perceived. The law does not need and does not attempt to
consider theories of psychology as to the subjectivity of knowledge or the mediateness of
perception. It assumes the objectivity of external nature; and, for the purposes of judicial
investigation, a thing perceived by the tribunal as existing does exist.

There are indeed genuine cases of inference by the tribunal from things perceived to other
things unperceived — as, for example, from a person’s size, complexion, and features, to
his age; these cases of a real use of inference can be later more fully distinguished . . . But
we are here concerned with nothing more than matters directly perceived — for example,
that a person is of small height or is of dark complexion; as to such matters, the perception
by the tribunal that the person is small or large, or that he has a dark or light complexion,
is a mode of acquiring belief which is independent of inference from either testimonial or
circumstantial evidence. It is the tribunal’s self-perception, or autopsy, of the thing itself.

From the point of view of the litigant party furnishing this source of belief, it may be
termed Autoptic Proference. (Citations omitted.)
3

In the case at bench, the autoptic proference contradicts the testimonial evidence
produced by petitioner. The will and its codicil, upon inspection by the respondent court,
show in black and white — or more accurately, in black and blue — that more than one
pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for
respondent court to disbelieve petitioner’s claim that both testamentary documents in
question were subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.

Neither did respondent court err when it did not accord great weight to the testimony of
Judge Tomas A. Tolete. It is true that his testimony contains a narration of how the two
testamentary documents were subscribed and attested to, starting from decedent’s
thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in
consecutive order. Nonetheless, nowhere in Judge Tolete’s testimony is there any kind of
explanation for the different-colored signatures on the testaments.

IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of
respondent Court of Appeals, dated March 27, 1988, in CA-G.R. CV No. 19071
disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia
Lingdan Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

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.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,

vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing
the probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant
Agapita N. Cruz, the surviving spouse of the said decease opposed the allowance of the
will (Exhibit "E"), alleging the will was executed through fraud, deceit, misrepresentation
and undue influence; that the said instrument was execute without the testator having
been fully informed of the content thereof, particularly as to what properties he was
disposing and that the supposed last will and testament was not executed in accordance
with law. Notwithstanding her objection, the Court allowed the probate of the said last will
and testament Hence this appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges,
is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was
executed in accordance with law, particularly Articles 805 and 806 of the new Civil Code,
the first requiring at least three credible witnesses to attest and subscribe to the will, and
the second requiring the testator and the witnesses to acknowledge the will before a
notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the
same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed by at
least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner argues
that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay,
who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at least
three attesting witnesses even if the notary public acted as one of them, bolstering up his
stand with 57 American Jurisprudence, p. 227 which, insofar as pertinent, reads as
follows:

It is said that there are, practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testator's signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain
that of the appellant that the last will and testament in question was not executed in
accordance with law. The notary public before whom the will was acknowledged cannot
be considered as the third instrumental witness since he cannot acknowledge before
himself his having signed the will. To acknowledge before means to avow (Javellana v.
Ledesma, 97 Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to
assent, to admit; and "before" means in front or preceding in space or ahead of. (The New
Webster Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New
Standard Dictionary of the English Language, p. 252; Webster's New International
Dictionary 2d. p. 245.) Consequently, if the third witness were the notary public himself, he
would have to avow assent, or admit his having signed the will in front of himself. This
cannot be done because he cannot split his personality into two so that one will appear
before the other to acknowledge his participation in the making of the will. To permit such
a situation to obtain would be sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal
or immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if
the notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of
acknowledgment, which is to minimize fraud (Report of Code Commission p. 106-107),
would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act
as a witness to the executive of the document he has notarized. (Mahilum v. Court
Appeals, 64 0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others
holding that his signing merely as notary in a will nonetheless makes him a witness
thereon (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641;
Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate
160 N. 900; W. Merill v. Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030).
But these authorities do not serve the purpose of the law in this jurisdiction or are not
decisive of the issue herein because the notaries public and witnesses referred to
aforecited cases merely acted as instrumental, subscribing attesting witnesses, and not
as acknowledging witnesses. He the notary public acted not only as attesting witness but
also acknowledging witness, a situation not envisaged by Article 805 of the Civil Code
which reads:

ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Emphasis supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the
required number of witnesses must appear before the notary public to acknowledge the
will. The result would be, as has been said, that only two witnesses appeared before the
notary public for or that purpose. In the circumstances, the law would not be duly in
observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid
and hereby set aside.

Cost against the appellee.

Makalintal, C.J., Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO QUETULIO
LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate
Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO, respondents.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil Cases
1

Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed
the Order dated 27 June 1983 of the Regional Trial Court of Sta. Cruz, Laguna, admitting
2

to probate the last will and testament with codicil of the late Brigido Alvarado.
3 4

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled
"Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly
revoked a previously executed holographic will at the time awaiting probate before Branch
4 of the Regional Trial Court of sta. Cruz, Laguna.

As testified to by the three instrumental witnesses, the notary public and by private
respondent who were present at the execution, the testator did not read the final draft of
the will himself. Instead, private respondent, as the lawyer who drafted the eight-paged
document, read the same aloud in the presence of the testator, the three instrumental
witnesses and the notary public. The latter four followed the reading with their own
respective copies previously furnished them.

Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9

December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng
Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may Petsa
Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the
notarial will to generate cash for the testator's eye operation. Brigido was then suffering
from glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the
case of the notarial will, the testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his presence and in the presence
of the three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.

A petition for the probate of the notarial will and codicil was filed upon the testator's death
on 3 January 1979 by private respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna. Petitioner, in turn, filed an Opposition on the
5

following grounds: that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally incapacitated to make
a will at the time of its execution due to senility and old age; that the will was executed
under duress, or influence of fear and threats; that it was procured by undue and improper
pressure and influence on the part of the beneficiary who stands to get the lion's share of
the testator's estate; and lastly, that the signature of the testator was procured by fraud or
trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the
Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was
made to respondent court. The main thrust of the appeal was that the deceased was blind
within the meaning of the law at the time his "Huling Habilin" and the codicil attached
thereto was executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and codicil should have
been denied.

On 11 April 1986, the Court of Appeals rendered the decision under review with the
following findings: that Brigido Alvarado was not blind at the time his last will and codicil
were executed; that assuming his blindness, the reading requirement of Art. 808 was
substantially complied with when both documents were read aloud to the testator with
each of the three instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then concluded that
although Art. 808 was not followed to the letter, there was substantial compliance since its
purpose of making known to the testator the contents of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purpose of
Art, 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the
double-reading requirement of said article complied with?

Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was
not totally blind at the time the will and codicil were executed. However, his vision on both
eyes was only of "counting fingers at three (3) feet" by reason of the glaucoma which he
had been suffering from for several years and even prior to his first consultation with an
eye specialist on
14 December 1977.

The point of dispute is whether the foregoing circumstances would qualify Brigido as a
"blind" testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

Petitioner contends that although his father was not totally blind when the will and codicil
were executed, he can be so considered within the scope of the term as it is used in Art.
808. To support his stand, petitioner presented before the trial court a medical certificate
issued by Dr. Salvador R. Salceda, Director of the Institute of Opthalmology (Philippine
Eye Research Institute), the contents of which were interpreted in layman's terms by Dr.
6

Ruperto Roasa, whose expertise was admitted by private respondent. Dr. Roasa 7

explained that although the testator could visualize fingers at three (3) feet, he could no
longer read either printed or handwritten matters as of 14 December 1977, the day of his
first consultation.8

On the other hand, the Court of Appeals, contrary to the medical testimony, held that the
testator could still read on the day the will and the codicil were executed but chose not to
do so because of "poor eyesight." Since the testator was still capable of reading at that
9

time, the court a quo concluded that Art. 808 need not be complied with.

We agree with petitioner in this respect.

Regardless of respondent's staunch contention that the testator was still capable of
reading at the time his will and codicil were prepared, the fact remains and this was
testified to by his witnesses, that Brigido did not do so because of his
"poor," "defective," or "blurred" vision making it necessary for private respondent to do
10 11 12

the actual reading for him.

The following pronouncement in Garcia vs. Vasquez provides an insight into the scope
13

of the term "blindness" as used in Art. 808, to wit:

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with
his wishes . . .

Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those
who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will and codicil on the separate
occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be
no other course for us but to conclude that Brigido Alvarado comes within the scope of the
term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way
of ascertaining whether or not the lawyer who drafted the will and codicil did so confortably
with his instructions. Hence, to consider his will as validly executed and entitled to probate,
it is essential that we ascertain whether Art. 808 had been complied with.

Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read
twice; once, by one of the instrumental witnesses and, again, by the notary public before
whom the will was acknowledged. The purpose is to make known to the incapacitated
testator the contents of the document before signing and to give him an opportunity to
object if anything is contrary to his instructions.

That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an
instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged
will and the five-paged codicil who read the same aloud to the testator, and read them
only once, not twice as Art. 808 requires.

Private respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner maintains
that the only valid compliance or compliance to the letter and since it is admitted that
neither the notary public nor an instrumental witness read the contents of the will and
codicil to Brigido, probate of the latter's will and codicil should have been disallowed.

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. With four 16

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, to wit:
18

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.

WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of
Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case
has remained pending, this decision is immediately executory. Costs against petitioner.

SO ORDERED.

Cruz, Griño-Aquino, Davide, Jr. and Quiason, JJ., concur.

G.R. No. L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND

BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas de
Jesus. On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate
of the holographic Win on July 21, 1973.

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found
a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23
and 24 thereof, a letter-win addressed to her children and entirely written and signed in
the handwriting of the deceased Bibiana R. de Jesus was found. The will is dated
"FEB./61 " and states: "This is my win which I want to be respected although it is not
written by a lawyer. ...

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61
" is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized
the handwriting of their mother and positively Identified her signature. They further
testified that their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when said Will was
executed by their mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because a it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted
by mistake and/or did not intend, nor could have intended the said Will to be her last Will
and testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in accordance
with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the Will
should contain the day, month and year of its execution and that this should be strictly
complied with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:

WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de

Jesus, is hereby disallowed for not having been executed as required by the law. The
order of August 24, 1973 is hereby set aside.

The only issue is whether or not the date "FEB./61 " appearing on the holographic Will of
the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the
Civil Code which reads:

ART. 810. A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of
the Old Civil Code require the testator to state in his holographic Win the "year, month,
and day of its execution," the present Civil Code omitted the phrase Año mes y dia and
simply requires that the holographic Will should be dated. The petitioners submit that the
liberal construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported holographic Will is
void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and Section
1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code because statutes prescribing the
formalities to be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook
the liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which,
in case of doubt is to prevent intestacy —

The underlying and fundamental objectives permeating the provisions of the law on wigs
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficien
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.

This objective is in accord with the modem tendency with respect to the formalities in the
execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27

SCRA 327) he emphasized that:

xxx xxx xxx

... The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that which
the law can make. For this reason, intestate succession is nothing more than a disposition
based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx

... More than anything else, the facts and circumstances of record are to be considered in
the application of any given rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to probate, although
the document may suffer from some imperfection of language, or other non-essential
defect. ... (Leynez v. Leynez 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by
this Court in Abangan v. Abanga 40 Phil. 476, where we ruled that:

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. ...

In particular, a complete date is required to provide against such contingencies as that of

two competing Wills executed on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wins and Testaments. There is
no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to her.
There is also no question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and that she had
the testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will is fatally
defective because the date "FEB./61 " appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be
entertained.

As a general rule, the "date" in a holographic Will should include the day, month, and year
of its execution. However, when as in the case at bar, there is no appearance of fraud,
bad faith, undue influence and pressure and the authenticity of the Will is established and
the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a
valid compliance with Article 810 of the Civil Code, probate of the holographic Will should
be allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED
and SET ASIDE and the order allowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

G.R. Nos. 83843-44 April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO

LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS
1

LABRADOR, respondents-appellees.

Benjamin C. Santos Law Offices for petitioners.

Rodrigo V. Fontelera for private respondents.

PARAS, J.:

The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 810 of the New Civil Code.
2

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No.
P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio,
Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica
Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of the alleged holographic will of the late
Melecio Labrador.
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 been extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the consideration of Six
Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and 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, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five
Thousand (P5,000) Pesos. (Rollo, p. 37)

Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land
which Sagrado allegedly had already acquired by devise from their father Melecio
Labrador under a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact that the aforesaid
Deed of Absolute Sale is fictitious.

After both parties had rested and submitted their respective 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 quo had also
directed the respondents (the defendants in Civil Case No. 934-I) to reimburse to the
petitioners the sum of P5,000.00 representing the redemption price for the property paid
by the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976,
when it was paid to vendee a retro.

Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modified said joint decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the Court
of Appeals, in the resolution of June 13, 1988. Hence, this petition.

Petitioners now assign the following errors committed by respondent court, to wit:

THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE

PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and

II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is quoted
as follows:

ENGLISH INTERPRETATION OF THE WILL OF THE

LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ

I — First Page

This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.

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 South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to
CRISTOBAL LABRADOR, who likewise is also their brother. That because it is now the
time for me being now ninety three (93) years, then I feel it is the right time for me to
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 sisters, for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and sisters.

II — Second Page

And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father.

Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they
so need, in order that there shall be nothing that anyone of them shall complain against
the other, and against anyone of the brothers and sisters.

III — THIRD PAGE

And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.

That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I am
signing my signature below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated, although the
date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance with
Article 810. It is worthy of note to quote the first paragraph of the second page of the
1âwphi1

holographic will, viz:

And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (emphasis supplied) (p. 46, Rollo)

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.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. L-12190 August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E.

GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.

Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.

Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University
of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang

aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamag-anakang sumusunod:

Vicente Esguerra, 5 Bahagi

Sr. .............................................

Fausto E. 2 Bahagi
Gan .........................................................

Rosario E. 2 Bahagi
Gan .........................................................

Filomena 1 Bahagi
Alto ..........................................................

Beatriz 1 Bahagi
Alto ..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking

ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa
ng isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa
bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At
kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang
matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased
had not left any will, nor executed any testament during her lifetime.

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 appeal.

The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first
cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be
useless if her husband discovered or knew about it. Vicente consulted with Fausto E. Gan,
nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it
could be done without 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 morning of November 5, 1951, in her residence at Juan
Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of
the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of
Vicente), who was 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 it.

Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez,
a niece. To these she showed the will, again in the presence of Felina Esguerra, who read
it for the third time.

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, Ildefonso Yap, her husband, asked Felina for the purse: and being
afraid of him by reason of his well-known violent temper, she delivered it to him.
Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it
the next day shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had 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 husband
and wife journeyed to the United States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting interesting places, the couple
returned 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. 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 hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's advice the
patient stayed in bed, and did nothing the whole day, her husband and her personal
attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to
keep her will a secret, 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 showing that Felina was a confidant of the decedent it is hard to
believe that the latter would have allowed the former to see and read the will several times;
(c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan
Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to
remain a secret during her lifetime; (d) it is also improbable that her purpose being to
conceal the will from her 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 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.

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.

In this appeal, the major portion of appellant's brief discussed the 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 they
failed to induce the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters,
because in our opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permitted the execution of holographic wills along with other
forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one
form, thereby repealing the other forms, including holographic wills.

The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A
person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form and may be made in or
out of the Philippines, and need not be witnessed."

This is indeed a radical departure from the form and solemnities 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 attest to
the number of sheets used and to the fact that the testator signed in their presence and
that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith
and fraud, to prevent substitution of wills, to guarantee their truth and authencity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid those who have no right to succeed
the 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 instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz.
1st Supp. No. 3 p. 194.)

Authenticity and due execution is the dominant requirements to be fulfilled when such will
is submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If
there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of
other additional witnesses) the court may form its opinion as to the genuineness and
authenticity of the testament, and the circumstances its due execution.

Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and
as its own safeguard, since it could at any time, be demonstrated to be — or not to be —
in the hands of 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 explicitly declare that the will and the signature are in the
handwriting of the testator. If the will is contested, at least three such witnesses shall be
required. In the absence of any such witnesses, (familiar with decedent's handwriting) and
if the court deem it necessary, expert testimony may be resorted to."

The witnesses so presented do not need to have seen the execution of the holographic
will. They may be mistaken in their 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 handwriting, or some expert witnesses, who after
comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own visual sense,
and decide in the face of the document, whether the will submitted to it has indeed been
written by the testator.

Obviously, when the will itself is not submitted, these means of opposition, and of
assessing the evidence are not available. And then the only guaranty of authenticity3 —
the testator's handwriting — has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in
the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the testator's hand. The
oppositor will, therefore, be caught between the upper millstone of his lack of knowledge
of the will or the form thereof, and the nether millstone of his inability to prove its falsity.
Again the proponent's witnesses may be honest and truthful; but they may have been
shown a faked document, and having no interest to check the authenticity thereof have
taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the
knowledge that none could convict them of perjury, because no one could prove that they
have not "been shown" a document 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 writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not foresee such a move and
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 deceased's handwriting. And the court and the oppositor would 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. Does the law permit such a situation?

The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or
destroyed will by secondary — evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

Could Rule 77 be extended, by analogy, to holographic wills?

Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen4 — an implied admission that such loss or theft renders it
useless..

This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the
three witnesses who depose that they have no reasonable doubt that the will was written
by the testator (Art. 691). And if the judge considers that the identity of the will has been
proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself.
Art. 692 bears the same implication, to a greater degree. It requires that the surviving
spouse and the legitimate 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 holographic will is usually done by the testator and by
himself alone, to prevent others from knowing either its execution or its contents, the
above article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court
and to them.

Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it
spurious.5 Such purpose is frustrated when the document is not presented for their
examination. If it be argued that such choice is not essential, 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 right which
they should not be denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the

decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn from
it. Even in the face of allegations and testimonial evidence (which was 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
unmutilated, must be presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del

articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento se encuentre en
dichas condiciones en el momento de ser presentado a la Autoridad competente, para au
adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la
persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the
basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que
los herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la
tierra, o al juez fasta VI meses y el obispo o el juez tomen otros tales tres 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 connoscido,
el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)

All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and
signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y 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.

In fine, even if oral testimony were admissible to establish and 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 distinct" proof required by
Rule 77, sec. 6.11

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B.
L., Endencia and Felix, JJ., concur.

EN BANC

G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

vs.
CESARIO SINGSON, oppositor-appellee.

F. Lavides and L.B. Alcuaz for appellant.

Vicente J. Cuna and P.S. Singson for appellee.

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

This appeal, taken on points of law from a decision rendered on 15 January 1958 by the
Court of First Instance of Quezon City in its Special Proceedings No. Q-2640, involves the
determination of the quantity of evidence required for the probate of a holographic will.

The established facts are thus summarized in the decision appealed from (Rec. App. pp.
22-24):

"Briefly speaking, the following facts were established by the petitioner; that on September
9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros
Azaola was made the sole heir as against the nephew of deceased Cesario Singson; that
witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the same was handed to him and his
wife; that the witness testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special power of the attorney (Exh. F), and
the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1)
including an affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the penmanship appearing
in the aforesaid documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing therein are the signatures of the testatrix; that
said witness, in answer to a question of his counsel admitted that the holographic will was
handed to him by the testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic notes, when the same
witness was asked by counsel if he was familiar with the penmanship and handwriting of
the deceased Fortunata Vda. de Yance, he answered positively in the affirmative and
when he was asked again whether the penmanship referred to in the previous answer as
appearing in the holographic will (Exh. C) was hers (testatrix'), he answered, "I would
definitely say it is hers"; that it was also established in the proceedings that the assessed
value of the property of the deceased in Luskot, Quezon City, is in the amount of
P7,000.00.

The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and
his wife, and (2) that the testatrix did not seriously intend the instrument to be her last will,
and that the same was actually written either on the 5th or 6th day of August 1957 and not
on November 20, 1956 as appears on the will.

The probate was denied on the ground that under Article 811 of the Civil Code, the
proponent must present three witnesses who could declare that the will and the signature
are in the writing of the testatrix, the probate being contested; and because the lone
witness presented by the proponent "did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix."

The proponent appealed, urging: first, that he was not bound to produce more than one
witness because the will's authenticity was not questioned; and second, that Article 811
does not mandatorily require the production of three witnesses to identify the handwriting
and signature of a holographic will, even if its authenticity should be denied by the adverse
party.

Article 811 of the Civil Code of the Philippines is to the following effect:

ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the
will and the signature are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.

In the absence of any competent witnesses referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to. (691a).

We agree with the appellant that since the authenticity of the will was not contested, he
was not required to produce more than one witness; but even if the genuineness of the
holographic will were contested, we are of the opinion that Article 811 of our present Civil
Code can not be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic will, none
being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of
witness possessing the requisite qualifications is a matter beyond the control of the
proponent. For it is not merely a question of finding and producing any three witnesses;
they must be witnesses "who know the handwriting and signature of the testator" and who
can declare (truthfully, of course, even if the law does not so express) "that the will and the
signature are in the handwriting of the testator". There may be no available witness of the
testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive
opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an
impossibility. That is evidently the reason why the second paragraph of Article 811
prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found (or
what amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established
for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291; Tolentino vs. Francisco,
57 Phil., 742). But it can not be ignored that the requirement can be considered mandatory
only in the case of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their validity (Art.
805). Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd
results are to be avoided.

Again, under Article 811, the resort to expert evidence is conditioned by the words "if the
Court deem it necessary", which reveal that what the law deems essential is that the Court
should be convinced of the will's authenticity. Where the prescribed number of witnesses
is produced and the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may still, and in
fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.

Commenting on analogous provisions of Article 691 of the Spanish Civil Code of 1889, the
noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho precepto
induce la conclusion de que siempre o por lo menos, en la mayor parte de los casos, el
Juez debe acudir al criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del expediente las
declaraciones testificales. La prudencia con que el Juez debe de proceder en
resoluciones de transcendencia asi lo exige, y la indole delicada y peligrosa del
testamento olografo lo hace necesario para mayor garantia de todos los interes
comprometidos en aquel.

En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir
al Juez acerca de la autenticidad que trata de averigaur y declarar. Para eso se ha escrito
la frase del citado ultimo apartado, (siempre que el Juez lo estime conveniente), haya
habido o no testigos y dudaran o no estos respecto de los extremos por que son
preguntados.

El arbitrio judicial en este caso debe 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.

Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David,
JJ., concur.

[G.R. No. 123486. August 12, 1999]

 EUGENIA RAMONAL CODOY, and MANUEL

RAMONAL, petitioners, vs.EVANGELINE R. CALUGAY,

JOSEPHINE SALCEDO, and EUFEMIA

PATIGAS, respondents.

DECISION

PARDO, J.:

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

Appeals[1] and its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established
and the handwriting and signature therein (exhibit S) are hers, enough to probate said
will. Reversal of the judgmentappealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has completed presentation of his
evidence and the defendant files a motion for judgment on demurrer to evidence on the
ground that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the movant loses his
right to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing
the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.[2]

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,

devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition[3] for probate of the holographic will of the deceased, who died on January 16,
1990.

In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue influence, and duress employed in the person of
the testator, and the will was written voluntarily.
 The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.[4]

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition[5] to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a third hand
of an interested party other than the true hand of Matilde Seo Vda. de Ramonal
executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should appear at the
bottom after the dispositions, as regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of the deceased, it was
procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.

Respondents presented six (6) witnesses and various documentary

evidence. Petitioners instead of presenting their evidence, filed a demurrer[6] to
evidence, claiming that respondents failed to establish sufficient factual and legal
basis for the probate of the holographic will of the deceased Matilde Seo Vda. de
Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion
of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence

having being well taken, same is granted, and the petition for probate of the document
(Exhibit S) on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal,
is denied for insufficiency of evidence and lack of merits.[7]

On December 12, 1990, respondents filed a notice of appeal,[8] and in support of

their appeal, the respondents once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an

account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where
the special proceedings for the probate of the holographic will of the deceased was
filed. He produced and identified the. records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of
laying the basis for comparison of the handwriting of the testatrix, with the writing
treated or admitted as genuine by the party against whom the evidence is offered.
 Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit was not
produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter lived
with her in her parents house for eleven (11) years, from 1958 to 1969. During those
eleven (11) years of close association with the deceased, she acquired familiarity with
her signature and handwriting as she used to accompany her (deceased Matilde Seo
Vda. de Ramonal) in collecting rentals from her various tenants of commercial
buildings, and the deceased always issued receipts. In addition to this, she (witness
Matilde Binanay) assisted the deceased in posting the records of the accounts, and
carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which
was personally and entirely written, dated and signed, by the deceased and that all the
dispositions therein, the dates, and the signatures in said will, were that of the
deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and
documents signed by the deceased in connection with the intestate proceedings of her
late husband, as a result of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified that she
processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the deceased signed documents in her presence, when
the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived
with the deceased since birth, and was in fact adopted by the latter. That after a long
period of time she became familiar with the signature of the deceased. She testified
that the signature appearing in the holographic will is the true and genuine signature
of Matilde Seo Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as

follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelrys shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd)Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

"August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

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

(Sgd) Matilde Vda de Ramonal

"August 30,1978

Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision[9] ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109
Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law,
the Court of Appeals held:

x x x even if the genuineness of the holographic will were contested, we are of the
opinion that Article 811 of our present civil code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of having the probate denied. Since no witness may have been present at
the execution of the holographic will, none being required by law (art. 810, new civil
code), it becomes obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must be witnesses who
know the handwriting and signature of the testator and who can declare (truthfully, of
course, even if the law does not express) that the will and the signature are in the
handwriting of the testator. There may be no available witness acquainted with the
testators hand; or even if so familiarized, the witness may be unwilling to give a
positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus
become an impossibility. That is evidently the reason why the second paragraph of
article 811 prescribes that

in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.

As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify
to the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if
the will is contested and only one if no contest is had) was derived from the rule
established for ordinary testaments (CF Cabang vs. Delfinado, 45 PHIL 291; Tolentino
v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be
considered mandatory only in case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need be
present (art.10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.

Again, under Art.811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the court
should be convinced of the wills authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their testimony that the will is
genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is convincing, the court
may still, and in fact it should resort to handwriting experts. The duty of the court, in
fine, is to exhaust all available lines of inquiry, for the state is as much interested as the
proponent that the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the testator,
under penalty of the having the probate denied. No witness need be present in the
execution of the holographic will.And the rule requiring the production of three
witnesses is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available lines of
inquiry, for the state is as much interested in the proponent that the true intention of the
testator be carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a partys failure to
offer expert evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.[10]

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal

Binanay and other witnesses definitely and in no uncertain terms testified that the
handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and

witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of
the holographic will and the handwriting and signature therein, and allowed the will to
probate.

Hence, this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the date,
 text, and signature on the holographic will were written entirely in the hand of
the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in
the holographic will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly declare
that the signature in the will is the genuine signature of the testator.

We are convinced, based on the language used, that Article 811 of the Civil Code
is mandatory. The word shall connotes a mandatory order. We have ruled that shall in
a statute commonly denotes an imperative obligation and is inconsistent with the idea
of discretion and that the presumption is that the word shall, when used in a statute is
mandatory.[11]

Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to
the wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the wishes
of the testator.

So, we believe that the paramount consideration in the present petition is to

determine the true intent of the deceased. An exhaustive and objective consideration
of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not
presented to declare explicitly that the signature appearing in the holographic was that
of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented
to identify the signature of the deceased in the voters affidavit, which was not even
produced as it was no longer available.

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

Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your
parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your
occupation or how did Matilde Vda de Ramonal keep herself busy that time?

A. Collecting rentals.

Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.[12]

xxx
Q. Who sometime accompany her?

A. I sometimes accompany her

Q. In collecting rentals does she issue receipts?

A. Yes, sir.[13]

xxx
Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring
to as one of the receipts which she issued to them?

A. Yes, sir.

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

that Mrs. Binanay?

A. Matilde vda. De Ramonal.

Q. Why do you say that that is a signature of Matilde vda. De Ramonal?

A. I am familiar with her signature.

Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal
kept records of the accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De

Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten.[14]

xxx
Q. In addition to collection of rentals, posting records of accounts of tenants and deed
of sale which you said what else did you do to acquire familiarity of the signature of
Matilde Vda De Ramonal?

A. Posting records.

Q. Aside from that?

A. Carrying letters.
 Q. Letters of whom?

A. Matilde

Q. To whom?

A. To her creditors.[15]

xxx
Q. You testified that at the time of her death she left a will. I am showing to you a
document with its title tugon is this the document you are referring to?

A. Yes, sir.

Q. Showing to you this exhibit S, there is that handwritten tugon, whose

handwriting is this?

A. My aunt.

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

A. Because I am familiar with her signature.[16]

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact
that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late
Matilde Seno vda de Ramonal left a will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

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

A. It was in my mothers possession.

Q. So, it was not in your possession?

A. Sorry, yes.

Q. And when did you come into possession since as you said this was originally in
the possession of your mother?

A. 1985.[17]
 xxx
Q. Now, Mrs. Binanay was there any particular reason why your mother left that will
to you and therefore you have that in your possession?

A. It was not given to me by my mother, I took that in the aparador when she died.

Q. After taking that document you kept it with you?

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will.[18]

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in
issue her motive of keeping the will a secret to petitioners and revealing it only after
the death of Matilde Seo Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that
correct?

A. Yes, sir.

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

A. Yes, sir.[19]

xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there
are retracings in the word Vda.?

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued to letter D?

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is
continued towards letter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?

 A. Yes, sir.[20]

xxx
Q. Now, that was 1979, remember one year after the alleged holographic will. Now,
you identified a document marked as Exhibit R. This is dated January 8,1978 which
is only about eight months from August 30,1978. Do you notice that the signature
Matilde Vda de Ramonal is beautifully written and legible?

A. Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was healthy was
not sickly and she was agile. Now, you said she was exhausted?

A. In writing.

Q. How did you know that she was exhausted when you were not present and you just
tried to explain yourself out because of the apparent inconsistencies?

A. That was I think. (sic)

Q. Now, you already observed this signature dated 1978, the same year as the alleged
holographic will. In exhibit I, you will notice that there is no retracing; there is no
hesitancy and the signature was written on a fluid movement. x x x And in fact , the
name Eufemia R. Patigas here refers to one of the petitioners?

A. Yes, sir.

Q. You will also notice Mrs. Binanay that it is not only with the questioned signature
appearing in the alleged holographic will marked as Exhibit X but in the handwriting
themselves, here you will notice the hesitancy and tremors, do you notice that?

A. Yes, sir.[21]

Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:
Q. You testified that you stayed with the house of the spouses Matilde and Justo
Ramonal for the period of 22 years. Could you tell the court the services if any which
you rendered to Matilde Ramonal?

A. During my stay I used to go with her to the church, to the market and then to her
transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and to her
lawyer.

Q. What was your purpose of going to her lawyer?

 A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?

A. Yes, sir.

Q. How come that you acquired familiarity?

A. Because I lived with her since birth.[22]

xxx
Q. Now, I am showing to you Exhibit S which is captioned tugon dated Agosto 30,
1978 there is a signature here below item No. 1, will you tell this court whose
signature is this?

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature.[23]

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

A. Yes, sir I know her because she is my godmother the husband is my

godfather. Actually I am related to the husband by consanguinity.

Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal.[24]

xxx
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal
have legitimate children?

A. As far as I know they have no legitimate children.[25]

xxx
Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de Ramonal?

A. I assisted her in terminating the partition, of properties.

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

A. It is about the project partition to terminate the property, which was under the
court before.[26]

xxx
Q. Appearing in special proceeding no. 427 is the amended inventory which is
marked as exhibit N of the estate of Justo Ramonal and there appears a signature over
the type written word Matilde vda de Ramonal, whose signature is this?

A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal.[27]

xxx
Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what
were the other assistance wherein you were rendering professional service to the
deceased Matilde Vda de Ramonal?

A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.[28]

xxx
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go over this
document, Fiscal Waga and tell the court whether you are familiar with the
handwriting contained in that document marked as exhibit S?

A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde vda de
Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can
you tell the court whose signature is this?

A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the
court whose signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q. Why do you say that?

A. Because there is a similarity in the way it is being written.

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

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

xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de
Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de
Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature because it
is similar to the signature of the project of partition which you have made?

A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson,[31] ruling that the
requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,[32] we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as
to attain these primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the exercise of the
right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged

as the will of the testator, which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in the handwriting of the
deceased.

The will was found not in the personal belongings of the deceased but with one of
the respondents, who kept it even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five
years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her during
her lifetime. The only chance at comparison was during the cross-examination of Ms.
Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents
which contained the signature of the deceased with that of the holographic will and
she is not a handwriting expert. Even the former lawyer of the deceased expressed
doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The signature
of the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978, [33] and
the signatures in several documents such as the application letter for pasture permit
dated December 30, 1980,[34] and a letter dated June 16, 1978,[35] the strokes are
different. In the letters, there are continuous flows of the strokes, evidencing that there
is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be
certain that the holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow petitioners to
adduce evidence in support of their opposition to the probate of the holographic will
of the deceased Matilde Seo Vda. de Ramonal.

No costs.

SO ORDERED.
Davide Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

G.R. No. L-40207 September 28, 1984

ROSA K. KALAW, petitioner,

vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch
VI, Lipa City, and GREGORIO K. KALAW, respondents.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the

sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the Court of
First Instance of Batangas, Branch VI, Lipa City, for the probate of her holographic Will
executed on December 24, 1968.
The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of
sound and disposing mind and memory, do hereby declare thus to be my last will and
testament.

1. It is my will that I'll be burried in the cemetery of the catholic church of Lipa City. In
accordance with the rights of said Church, and that my executrix hereinafter named
provide and erect at the expose of my state a suitable monument to perpetuate my
memory.

xxx xxx xxx

The holographic Will, as first written, named ROSA K. Kalaw, a sister of the testatrix as
her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw opposed probate
alleging, in substance, that the holographic Will contained alterations, corrections, and
insertions without the proper authentication by the full signature of the testatrix as required
by Article 814 of the Civil Code reading:

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will
the testator must authenticate the same by his full signature.

ROSA's position was that the holographic Will, as first written, should be given effect and
probated so that she could be the sole heir thereunder.

After trial, respondent Judge denied probate in an Order, dated September 3, 197 3,
reading in part:

The document Exhibit "C" was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit
"C" was the handwriting of the decedent, Natividad K. Kalaw. The only question is
whether the win, Exhibit 'C', should be admitted to probate although the alterations and/or
insertions or additions above-mentioned were not authenticated by the full signature of the
testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors
are estopped to assert the provision of Art. 814 on the ground that they themselves
agreed thru their counsel to submit the Document to the NBI FOR EXAMINATIONS. This
is untenable. The parties did not agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article 814 of the Civil Code is applicable
to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit "C" not to be
authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the holographic will of Natividad K.
Kalaw is hereby denied.

SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the alterations
and/or insertions were the testatrix, the denial to probate of her holographic Will would be
contrary to her right of testamentary disposition. Reconsideration was denied in an Order,
dated November 2, 1973, on the ground that "Article 814 of the Civil Code being , clear
and explicit, (it) requires no necessity for interpretation."

From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
certiorari on the sole legal question of whether or not the original unaltered text after
subsequent alterations and insertions were voided by the Trial Court for lack of
authentication by the full signature of the testatrix, should be probated or not, with her as
sole heir.

Ordinarily, when a number of erasures, corrections, and interlineations made by the

testator in a holographic Will litem not been noted under his signature, ... the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined.1 Manresa gave an Identical commentary when he said "la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2

However, when as in this case, the holographic Will in dispute had only one substantial
provision, which was altered by substituting the original heir with another, but which
alteration did not carry the requisite of full authentication by the full signature of the
testator, the effect must be that the entire Will is voided or revoked for the simple reason
that nothing remains in the Will after that which could remain valid. To state that the Will
as first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to
authenticate it in the manner required by law by affixing her full signature,

The ruling in Velasco, supra, must be held confined to such insertions, cancellations,
erasures or alterations in a holographic Will, which affect only the efficacy of the altered
words themselves but not the essence and validity of the Will itself. As it is, with the
erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude. As Manresa had stated in his commentary on Article
688 of the Spanish Civil Code, whence Article 814 of the new Civil Code was derived:

... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no declara
la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas o
entre renglones no salvadas por el testador bajo su firnia segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o
eficacia de tales palabras, y nunca al testamento mismo, ya por estar esa disposicion en
parrafo aparte de aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo de que
pequefias enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva
del testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo
ha de entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado
que declara nulas las adiciones apostillas entrerrenglonados, raspaduras y tachados en
las escrituras matrices, siempre que no se salven en la forma prevenida, paro no el
documento que las contenga, y con mayor motivo cuando las palabras enmendadas,
tachadas, o entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del
pensamiento del testador, o constituyan meros accidentes de ortografia o de purez
escrituraria, sin trascendencia alguna(l).

Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar saan de pala bras
que no afecter4 alteren ni uarien de modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916,
que declara nulo un testamento olografo por no estar salvada por el testador la enmienda
del guarismo ultimo del año en que fue extendido (Emphasis ours).
3

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge,
dated September 3, 1973, is hereby affirmed in toto. No costs.

SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First
Division, promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the
1

decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed the
probate of the last will and testament of the deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a
petition with the Court of First Instance of Rizal docketed as Special Proceedings No.
3617, for the probate of a will alleged to have been executed by the deceased Isabel
Gabriel and designating therein petitioner as the principal beneficiary and executrix.

There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on
June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not
controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that private respondent, with her
husband and children, lived with the deceased at the latters residence prior an- d up to the
time of her death.

The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to
have been executed in Manila on the 15th day of April, 1961, or barely two (2) months
prior to the death of Isabel Gabriel. It consists of five (5) pages, including the pages
whereon the attestation clause and the acknowledgment of the notary public were written.
The signatures of the deceased Isabel Gabriel appear at the end of the will on page four
and at the left margin of all the pages. The attestation clause, which is found on page four,
reads as follows:

PATUNAY NG MGA SAKSI

Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat
sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng
nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at
sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng
patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito.

At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde
D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife,
for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their
signatures also appear on the left margin of all the other pages. The WW is paged by
typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang
Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.

The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to
be paid from her estate; that all her obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner),
Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea,
Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent
Lutgarda Santiago, who was described in the will by the testatrix as "aking mahal na
pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and estate,
real or personal already acquired, or to be acquired, in her testatrix name, after satisfying
the expenses, debts and legacies as aforementioned.

The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative

4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the
court a quo rendered judgment, the summary and dispositive portions of which read:

Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the
deceased was procured through undue and improper pressure and influence on the part
of the petitioner, or of some other person for her benefit;

2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity due to
old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the purported
will of the deceased was not executed and attested as required by law;

4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.

WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,

hence, the only issue decided on appeal was whether or not the will in question was
executed and attested as required by law. The Court of Appeals, upon consideration of
the evidence adduced by both parties, rendered the decision now under review, holding
that the will in question was signed and executed by the deceased Isabel Gabriel on April
15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya
and Maria Gimpaya, signing and witnessing the document in the presence of the
deceased and of each other as required by law, hence allow ed probate.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid decision
3

and such motion was opposed by petitioner-appellant Lutgarda Santiago. Thereafter.

4

parties submitted their respective Memoranda, and on August 28, 1973, respondent
5

Court, Former Special First Division, by Resolution denied the motion for reconsideration
6

stating that:

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance with
law because the same was signed on several occasions, that the testatrix did not sign the
will in the presence of all the instrumental witnesses did not sign the will in the presence of
each other.

The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record, There is no reason to alter the findings of fact in the decision of this
Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion and/or acted without or in excess of its jurisdiction
in reverssing the findings of fact and conclusions of the trial court. The Court, after
deliberating on the petition but without giving due course resolved, in the Resolution dated
Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed
on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the
arguments adduced in the petition, as well as the Comment of private respondent
8

thereon, We denied the petition by Resolution on November 26, 1973, the question 9

raised being factual and for insufficient showing that the findings of fact by respondent
Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration which private respondent answered by way of her Comment or
10

Opposition filed on January 15, 1974. A Reply and Rejoinder to Reply followed. Finally,
11

on March 27, 1974, We resolved to give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was
executed and attested as required by law when there was absolutely no proof that the
three instrumental witnesses were credible witness

II. The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such
data into the document Exhibit "F".

IV. The Court of Appeals erred in holding that the fact that the three typewritten lines
under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond
cavil that the three attesting witnesses were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to
Atty. Paraiso.

VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia
was not physically present when the Will Exhibit "F" was allegedly signed on April 15,
1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
Gimpaya.

VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the win was improperly executed.

VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had
been explained away, and that the trial court erred in rejecting said testimonies.

IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed
from the accepted and usual course of judicial proceedings, as to call for an exercise of
the power of supervision.

X. The Court of Appeals erred in reversing the decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are substantially
factual in character and content. Hence, at the very outset, We must again state the
oft-repeated and well-established rule that in this jurisdiction, the factual findings of the
Court of Appeals are not reviewable, the same being binding and conclusive on this Court.
This rule has been stated and reiterated in a long line of cases enumerated in Chan vs.
CA (L-27488, June 30, 1970, 33 SCRA 737, 743) and Tapas vs. CA (L-22202, February
12

27; 1976, 69 SCRA 393), and in the more recent cases of Baptisia vs. Carillo and
13

CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs. Heirs of Catalina
Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this
Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice
Recto, it has been well-settled that the jurisdiction of tills Court in cases brought to us from
the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a decision exactly a month later, this
Court, speaking through the then Justice Laurel, it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its findings of fact ...

Stated otherwise, findings of facts by the Court of Appeals, when supported by

substantive evidence are not reviewable on appeal by certiorari. Said findings of the
appellate court are final and cannot be disturbed by Us particularly because its premises
are borne out by the record or based upon substantial evidence and what is more, when
such findings are correct. Assignments of errors involving factual issues cannot be
ventilated in a review of the decision of the Court of Appeals because only legal questions
may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth
in the decision of the Court of Appeals sought to be reversed. Where the findings of the
Court of Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme
Court is in order, and resort to duly-proven evidence becomes necessary. The general
rule We have thus stated above is not without some recognized exceptions.

Having laid down the above legal precepts as Our foundation, We now proceed to
consider petitioner's assignments of errors.

Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law
when there was absolutely no proof that the three instrumental witnesses were credible
witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses
must be credible is an absolute requirement which must be complied with before an
alleged last will and testament may be admitted to probate and that to be a credible
witness, there must be evidence on record that the witness has a good standing in his
community, or that he is honest and upright, or reputed to be trustworthy and reliable.
According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is
not synonymous with "competent" for a witness may be competent under Article 820 and
821 of the Civil Code and still not be credible as required by Article 805 of the same Code.
It is further urged that the term "credible" as used in the Civil Code should receive the
same settled and well- known meaning it has under the Naturalization Law, the latter
being a kindred legislation with the Civil Code provisions on wigs with respect to the
qualifications of witnesses.

We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code
provides the qualifications of a witness to the execution of wills while Article 821 sets forth
the disqualification from being a witness to a win. These Articles state:

Art. 820. Any person of sound mind and of the age of eighteen years or more, and not
blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being
witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially or at any
time during the trial as to his good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court. It is enough that the
qualifications enumerated in Article 820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced from his answers to the questions
propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf
or dumb and that he is able to read and write to the satisfaction of the Court, and that he
has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's
contention that it must first be established in the record the good standing of the witness in
the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party.

We also reject as without merit petitioner's contention that the term "credible" as used in
the Civil Code should be given the same meaning it has under the Naturalization Law
where the law is mandatory that the petition for naturalization must be supported by two
character witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a
petition for naturalization are character witnesses in that being citizens of the Philippines,
they personally know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the Naturalization
Law (Section 7, Commonwealth Act No. 473 as amended).

In probate proceedings, the instrumental witnesses are not character witnesses for they
merely attest the execution of a will or testament and affirm the formalities attendant to
said execution. And We agree with the respondent that the rulings laid down in the cases
cited by petitioner concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil Code of the
Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible
is satisfactorily supported by the evidence as found by the respondent Court of Appeals,
which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner
has not pointed to any disqualification of any of the said witnesses, much less has it been
shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.

It is true that under Article 805 of the New Civil Code, every will, other than a holographic
will, must be subscribed at the end thereof by the testator himself or by the testator's
name written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another, While the petitioner submits that Article 820 and 821 of the
New Civil Code speak of the competency of a witness due to his qualifications under the
first Article and none of the disqualifications under the second Article, whereas Article 805
requires the attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore, a
witness in addition to being competent under Articles 820 and 821 must also be a credible
witness under Article 805.

Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses
are credible in themselves, that is, that they are of good standing in the community since
one was a family driver by profession and the second the wife of the driver, a
housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife
Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a
grandchild of the testatrix But the relation of employer and employee much less the
humble or financial position of a person do not disqualify him to be a competent
testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).

Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of
the same Code, this being obvious from that portion of Article 820 which says "may be Q
witness to the execution of a will mentioned in Article 805 of this Code," and cites
authorities that the word "credible" insofar as witnesses to a will are concerned simply
means " competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in existence at the
time of, and not revoked before, the death of the testator, still the provisions of the lost wig
must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon
hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court
held that "Section 620 of the same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and
able to read and write, may be a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and
employee, or being a relative to the beneficiary in a win, does not disqualify one to be a
witness to a will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said witness must
be credible, that is to say, his testimony may be entitled to credence. There is a long line
of authorities on this point, a few of which we may cite:

A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St.
Rep. 1010. (Words and Phrases, Vol. 10, p. 340).

As construed by the common law, a 'credible witness' to a will means a 'competent

witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).

Expression 'credible witness' in relation to attestation of wins means 'competent witness

that is, one competent under the law to testify to fact of execution of will. Vernon's Ann.
Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888,
889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by two
credible witnesses means competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts attested by subscribing the will,
the competency being determined as of the date of the execution of the will and not of the
timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)

Credible witnesses as used in the statute relating to wills, means competent witnesses —
that is, such persons as are not legally disqualified from testifying in courts of justice, by
reason of mental incapacity, interest, or the commission of crimes, or other cause
excluding them from testifying generally, or rendering them incompetent in respect of the
particular subject matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E.
545, 546, 322 111. 42. (Ibid. p, 343)

In the strict sense, the competency of a person to be an instrumental witness to a will is

determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises from the belief and conclusion of
the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: "Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe his testimony." In fine, We state
the rule that the instrumental witnesses in Order to be competent must be shown to have
the qualifications under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy of belief and entitled
to credence, it is not mandatory that evidence be first established on record that the
witnesses have a good standing in the community or that they are honest and upright or
reputed to be trustworthy and reliable, for a person is presumed to be such unless the
contrary is established otherwise. In other words, the instrumental witnesses must be
competent and their testimonies must be credible before the court allows the probate of
the will they have attested. We, therefore, reject petitioner's position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that the
witnesses were "credible witnesses that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.

Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the respondent court in finding that the
preparation and execution of the will was expected and not coincidental, in finding that
Atty. Paraiso was not previously furnished with the names and residence certificates of
the witnesses as to enable him to type such data into the document Exhibit "F", in holding
that the fact that the three typewritten lines under the typewritten words "pangalan" and
"tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion, in holding credible that Isabel Gabriel could have dictated
the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the
trial court gave undue importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the petitioner
had been explained away.

Since the above errors are factual We must repeat what We have previously laid down
that the findings of fact of the appellate court are binding and controlling which We cannot
review, subject to certain exceptions which We win consider and discuss hereinafter. We
are convinced that the appellate court's findings are sufficiently justified and supported by
the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it was coincidental that
Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals
that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to
his office on April 15, 1961 was unexpected as there was no prior appointment with him,
but he explained that he was available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the
appellate court is amply based on the testimony of Celso Gimpaya that he was not only
informed on the morning of the day that he witnessed the will but that it was the third time
when Isabel Gabriel told him that he was going to witness the making of her will, as well
as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to
proceed to Isabel Gabriel's house which was nearby and from said house, they left in a
car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.

The respondent Court further found the following facts: that Celso Gimpaya and his wife
Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was
executed. Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas,
Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was
issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed
that there was nothing surprising in these facts and that the securing of these residence
certificates two days and one day, respectively, before the execution of the will on April 15,
1961, far from showing an amazing coincidence, reveals that the spouses were earlier
notified that they would be witnesses to the execution of Isabel Gabriel's will.

We also agree with the respondent Court's conclusion that the excursion to the office of
Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from
the testimony of the Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three
witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for
about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.

It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day
that. the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her
in the execution of her will and that he told her that if she really wanted to execute her will,
she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician
notwithstanding the fact that he believed her to be of sound and disposition mind. From
this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental
as their gathering was pre-arranged by Isabel Gabriel herself."

As to the appellate court's finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit ' L which the petitioner assails as contradictory and irreconcilable
with the statement of the Court that Atty. Paraiso was handed a list (containing the names
of the witnesses and their respective residence certificates) immediately upon their arrival
in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who
testified that it was only on said occasion that he received such list from Isabel Gabriel,
We cannot agree with petitioner's contention. We find no contradiction for the, respondent
Court held that on the occasion of the will making on April 15, 1961, the list was given
immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.

But whether Atty. Paraiso was previously furnished with the names and residence
certificates of the witnesses on a prior occasion or on the very occasion and date in April
15, 1961 when the will was executed, is of no moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the attestation clause duly executed and signed on
the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly
acknowledged by the testatrix and the witnesses before a notary public, the same is a
public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein
expressed. It has in its favor the presumption of regularity. To contradict all these, there
must be evidence that is clear, convincing and more than merely preponderant. (Yturalde
vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at
bar.

Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same
occasion merits Our approval because tills conclusion is supported and borne out by the
evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the
typewritten words "names", "Res. Tax Cert. date issued" and place issued the only name
of Isabel Gabriel with Residence Tax certificate No. A-5113274 issued on February 24,
1961 at Navotas Rizal appears to be in typewritten form while the names, residence tax
certificate numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides
with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was
the appointment of the appellant Santiago as executrix of the will without bond. The
technical description of the properties in paragraph 5 of Exhibit F was not given and the
numbers of the certificates of title were only supplied by Atty. Paraiso. "

It is true that in one disposition, the numbers of the Torrens titles of the properties
disposed and the docket number of a special proceeding are indicated which Atty. Paraiso
candidly admitted were supplied by him, whereupon petitioner contends that it was
incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or
document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman
more than eighty-one years old and had been suffering from a brain injury caused by two
severe blows at her head and died of terminal cancer a few weeks after the execution of
Exhibit "F". While we can rule that this is a finding of fact which is within the competency of
the respondent appellate court in determining the testamentary capacity of the testatrix
and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any
note or memorandum appears to be fully supported by the following facts or evidence
appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her
business affairs as she actively managed the affairs of the movie business ISABELITA
Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death. She
was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as
coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of
the win was in Tagalog, a dialect known and understood by her and in the light of all the
circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting
witnesses and the notary public himself.

Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial
and documentary is, according to the respondent court, overwhelming that Matilde Orobia
was physically present when the will was signed on April 15, 1961 by the testatrix and the
other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the
appellate court is very clear, thus: "On the contrary, the record is replete with proof that
Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April
'15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
court's conclusion that Orobia's admission that she gave piano lessons to the child of the
appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that
— day is purely conjectural. Witness Orobia did not admit having given piano lessons to
the appellant's child every Wednesday and Saturday without fail. It is highly probable that
even if April 15, 1961 were a Saturday, she gave no piano lessons on that day for which
reason she could have witnessed the execution of the will. Orobia spoke of occasions
when she missed giving piano lessons and had to make up for the same. Anyway, her
presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there
was nothing to preclude her from giving piano lessons on the afternoon of the same day in
Navotas, Rizal."

In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that
Matilde was present on April 15, 1961 and that she signed the attestation clause to the will
and on the left-hand margin of each of the pages of the will, the documentary evidence
which is the will itself, the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that
day of April 15, 1961 and that she witnessed the will by signing her name thereon and
acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The
attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending
the execution of the will. This is the very purpose of the attestation clause which is made
for the purpose of preserving in permanent form a record of the facts attending the
execution of the will, so that in case of failure in the memory of the subscribing witnesses,
or other casualty they may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez
vs. Leynez, 68 Phil. 745).

As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that
the trial court gave undue importance to the picture-takings as proof that the win was
improperly executed, We agree with the reasoning of the respondent court that: "Matilde
Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other
two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer
was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law
does not require a photographer for the execution and attestation of the will. The fact that
Miss Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts
from her testimony that she was present when the will was signed because what matters
here is not the photographer but the photograph taken which clearly portrays Matilde
Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court
correctly held: "The trial court gave undue importance to the picture takings, jumping
therefrom to the conclusion that the will was improperly executed. The evidence however,
heavily points to only one occasion of the execution of the will on April 15, 1961 which was
witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were
quite emphatic and positive when they spoke of this occasion. Hence, their Identification
of some photographs wherein they all appeared along with Isabel Gabriel and Atty.
Paraiso was superfluous."

Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty.
Paraiso as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that the will was duly executed and
witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's
rationalization in conformity with logic, law and jurisprudence which do not require
picture-taking as one of the legal requisites for the execution or probate of a will.

Petitioner points to alleged grave contradictions, evasions and misrepresentations of

witnesses in their respective testimonies before the trial court. On the other hand, the
respondent Court of Appeals held that said contradictions, evasions and
misrepresentations had been explained away. Such discrepancies as in the description of
the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big
letters which are of the type in which the will was typewritten but which was Identified by
witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the name of the
photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin Cifra,
Jr.— these are indeed unimportant details which could have been affected by the lapse of
time and the treachery of human memory such that by themselves would not alter the
probative value of their testimonies on the true execution of the will, (Pascual vs. dela
Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person win
be Identical and coinciding with each other with regard to details of an incident and that
witnesses are not expected to remember all details. Human experience teach us "that
contradictions of witnesses generally occur in the details of certain incidents, after a long
series of questionings, and far from being an evidence of falsehood constitute a
demonstration of good faith. In as much 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." (Lopez vs. Liboro,
81 Phil. 429).

It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position
to weigh and evaluate the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The right of the Court
of Appeals to review, alter and reverse the findings of the trial court where the appellate
court, in reviewing the evidence has found that facts and circumstances of weight and
influence have been ignored and overlooked and the significance of which have been
misinterpreted by the trial court, cannot be disputed. Findings of facts made by trial courts
particularly when they are based on conflicting evidence whose evaluation hinges on
questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant
case, however, the Court of Appeals found that the trial court had overlooked and
misinterpreted the facts and circumstances established in the record. Whereas the
appellate court said that "Nothing in the record supports the trial court's unbelief that
Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial
court's conclusion that Matilde Orobia could not have witnessed anybody signing the
alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign
the same or that she witnessed only the deceased signing it, is a conclusion based not on
facts but on inferences; that the trial court gave undue importance to the picture-takings,
jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will
signing occasion was a mere coincidence and that Isabel Gabriel made an appointment
only with Matilde Orobia to witness the signing of her will, then it becomes the duty of the
appellate court to reverse findings of fact of the trial court in the exercise of its appellate
jurisdiction over the lower courts.

Still the petitioner insists that the case at bar is an exception to the rule that the judgment
of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the
Supreme Court. Again We agree with the petitioner that among the exceptions are: (1)
when the conclusion is a finding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3)
when there is a grave abuse of discretion; (4) when the presence of each other as
required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel,
together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a
medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving
at the latter's office and told the lawyer that she wanted her will to be made; that Atty.
Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the will and the
attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and
spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and after finishing the document,
he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed
her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every
page of the document in the presence also of the said three witnesses; that thereafter
Matilde Orobia attested the will by signing her name at the end of the attestation clause
and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of
Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation clause and at the
left-hand margin of the other pages of the document in the presence of Isabel Gabriel,
Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at
the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On
the occasion of the execution and attestation of the will, a photographer took pictures, one
Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria
Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another,
Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel
Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her
witnesses for he did not know beforehand the Identities of the three attesting witnesses
until the latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty.
Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and
ratified the will on the date in question."

It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty.
Paraiso as against the contention of petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on record as stated in the decision
under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel
Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all
the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper that she handed to said lawyer she had no
note or document. This fact jibes with the evidence — which the trial court itself believed
was unshaken — that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple.
The first was Isabel Gabriel's wish to be interred according to Catholic rites the second
was a general directive to pay her debts if any; the third provided for P1,000.00 for her
sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel;
the fourth was a listing of her 13 nephews and nieces including oppositor-appellee
Rizalina Gabriel and the amount for each legatee the fifth was the institution of the
petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms
seven (7) types of properties; the sixth disposed of the remainder of her estate which she
willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to
anyone except in extreme situations in which judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct.
31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr.
vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).

Petitioner's insistence is without merit. We hold that the case at bar does not fall within
any of the exceptions enumerated above. We likewise hold that the findings of fact of the
respondent appellate court are fully supported by the evidence on record. The
conclusions are fully sustained by substantial evidence. We find no abuse of discretion
and We discern no misapprehension of facts. The respondent Court's findings of fact are
not conflicting. Hence, the well-established rule that the decision of the Court of Appeals
and its findings of fact are binding and conclusive and should not be disturbed by this
Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have
heretofore made in respect ' to petitioner's previous assignments of error and to which We
have disagreed and, therefore, rejected.

The last assignments of error of petitioner must necessarily be rejected by Us as We find

the respondent Court acted properly and correctly and has not departed from the
accepted and usual course of judicial proceedings as to call for the exercise of the power
of supervision by the Supreme Court, and as We find that the Court of Appeals did not err
in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will
and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of
the evidence on record is unassailable that: "From the welter of evidence presented, we
are convinced that the will in question was executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in
the the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting
around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to
Isabel Gabriel and retained the other copies for his file and notarial register. A few days
following the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer
arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture
taken because the first picture did not turn out good. The lawyer told her that this cannot
be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not
present.

Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the

witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the three instrumental witnesses who constitute the
best evidence of the will making have testified in favor of the probate of the will. So has
the lawyer who prepared it, one learned in the law and long in the practice thereof, who
thereafter notarized it. All of them are disinterested witnesses who stand to receive no
benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is
factual and we go back to the rule that the Supreme Court cannot review and revise the
findings of facts of the respondent Court of Appeals.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby

AFFIRMED, with costs against the petitioner.

SO ORDERED.

Teehankee, Makasiar, De Castro and Herrera, JJ., concur.