G.R. No. L-40207 September 28, 1984
The NBI reported that the
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.
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
1
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 extendido3(Emphasis ours).
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.
G.R. No. 106720 September 15, 1994
SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE
SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the
dispositive portion of which reads;
PREMISES CONSIDERED, the questioned
decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE,
and the petition for probate is hereby
DISMISSED. No costs.
The earlier Decision was rendered by the RTC of
Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171,
and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on
November 25, 1982.
In the will, decedent named as devisees, the following:
petitioners Roberto and Thelma Ajero, private respondent
Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar
Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their
children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-
37171, for allowance of decedent's holographic will. They
alleged that at the time of its execution, she was of sound and
disposing mind, not acting under duress, fraud or undue
influence, and was in every respect capacitated to dispose of
her estate by will.
Private respondent opposed the petition on the grounds that:
neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot located
in Cabadbaran, Agusan Del Norte. He claimed that said property
could not be conveyed by decedent in its entirety, as she was
not its sole owner.
Notwithstanding the oppositions, the trial court admitted the
decedent's holographic will to probate. It found, inter alia:
Considering then that the probate
proceedings herein must decide only the
question of identity of the will, its due
execution and the testamentary capacity of
the testatrix, this probate court finds no
reason at all for the disallowance of the will for
2
its failure to comply with the formalities
prescribed by law nor for lack of testamentary
capacity of the testatrix.
For one, no evidence was presented to show
that the will in question is different from the
will actually executed by the testatrix. The
only objections raised by the oppositors . . .
are that the will was not written in the
handwriting of the testatrix which properly
refers to the question of its due execution, and
not to the question of identity of will. No other
will was alleged to have been executed by the
testatrix other than the will herein presented.
Hence, in the light of the evidence adduced,
the identity of the will presented for probate
must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually
executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written,
dated and signed in the handwriting of the
testatrix has been disputed, the petitioners,
however, have satisfactorily shown in Court
that the holographic will in question was
indeed written entirely, dated and signed in
the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown
knowledge of the handwriting of the testatrix
have been presented and have explicitly and
categorically identified the handwriting with
which the holographic will in question was
written to be the genuine handwriting and
signature of the testatrix. Given then the
aforesaid evidence, the requirement of the
law that the holographic will be entirely
written, dated and signed in the handwriting of
the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary
capacity of the testratix, (private respondent)
Clemente Sand himself has testified in Court
that the testatrix was completely in her sound
mind when he visited her during her birthday
celebration in 1981, at or around which time
the holographic will in question was executed
by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of
making the will, knew the value of the estate
to be disposed of, the proper object of her
bounty, and the characterof the testamentary
act . . . The will itself shows that the testatrix
even had detailed knowledge of the nature of
her estate. She even identified the lot number
and square meters of the lots she had
conveyed by will. The objects of her bounty
were likewise identified explicitly. And
considering that she had even written a
nursing book which contained the law and
jurisprudence on will and succession, there is
more than sufficient showing that she knows
the character of the testamentary act.
In this wise, the question of identity of the will,
its due execution and the testamentary
capacity of the testatrix has to be resolved in
favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show
sufficient reason for the disallowance of
herein holographic will. While it was alleged
that the said will was procured by undue and
improper pressure and influence on the part
of the beneficiary or of some other person, the
evidence adduced have not shown any
instance where improper pressure or
influence was exerted on the testatrix.
(Private respondent) Clemente Sand has
testified that the testatrix was still alert at the
time of the execution of the will, i.e., at or
around the time of her birth anniversary
celebration in 1981. It was also established
that she is a very intelligent person and has a
mind of her own. Her independence of
character and to some extent, her sense of
superiority, which has been testified to in
Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to
make the aforesaid will. It must be noted that
the undue influence or improper pressure in
question herein only refer to the making of a
will and not as to the specific testamentary
provisions therein which is the proper subject
of another proceeding. Hence, under the
circumstances, this Court cannot find
convincing reason for the disallowance of the
will herein.
Considering then that it is a well-established
doctrine in the law on succession that in case
of doubt, testate succession should be
preferred over intestate succession, and the
fact that no convincing grounds were
presented and proven for the disallowance of
the holographic will of the late Annie Sand,
the aforesaid will submitted herein must be
admitted to probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for
probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements
for its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as
follows:
Art. 813: When a number of dispositions
appearing in a holographic will are signed
without being dated, and the last disposition
has a signature and date, such date validates
the dispositions preceding it, whatever be the
time of prior dispositions.
Art. 814: In case of insertion, cancellation,
erasure or alteration in a holographic will, the
testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either
unsigned and undated, or signed but not dated. It also found that
3
the erasures, alterations and cancellations made thereon had
not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall
be disallowed in any of the following cases:
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time
of its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
(e) If the signature of the testator was
procured by fraud or trick, and he did not
intend that the instrument should be his will at
the time of fixing his signature thereto.
In the same vein, Article 839 of the New Civil Code
reads:
Art. 839: The will shall be disallowed in any of
the following cases;
(1) If the formalities
required by law have not
been complied with;
(2) If the testator was
insane, or otherwise
mentally incapable of
making a will, at the time of
its execution;
(3) If it was executed
through force or under
duress, or the influence of
fear, or threats;
(4) If it was procured by
undue and improper
pressure and influence, on
the part of the beneficiary
or of some other person;
(5) If the signature of the
testator was procured by
fraud;
(6) If the testator acted by
mistake or did not intend
that the instrument he
signed should be his will at
the time of affixing his
signature thereto.
These lists are exclusive; no other grounds can serve to disallow
a will. 5 Thus, in a petition to admit a holographic will to probate,
the only issues to be resolved are: (1) whether the instrument
submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the
formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic
will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of
the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil.
476, 479 (1919), 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. 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 last will, must be disregarded.
For purposes of probating non-holographic wills, these formal
solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of
the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article
810 of the New Civil Code, thus:
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. (Emphasis supplied.)
Failure to strictly observe other formalities will not
result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its
requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to sign
and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does
not render the whole testament void.
4
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984),
this Court held:
Ordinarily, when a number of erasures,
corrections, and interlineations made by the
testator in a holographic Will have 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. Manresa gave an
identical commentary when he said "la
omission de la salvedad no anula el
testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de
1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or
insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will
itself. 10 The lack of authentication will only result in
disallowance of such changes.
It is also proper to note that the requirements of authentication
of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which
provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the
testator writes it himself in the form and with
the requisites required in Article 688.
Art. 688: Holographic wills may be executed
only by persons of full age.
In order that the will be valid it must be drawn
on stamped paper corresponding to the year
of its execution, written in its entirety by the
testator and signed by him, and must contain
a statement of the year, month and day of its
execution.
If it should contain any erased, corrected, or
interlined words, the testator must identify
them over his signature.
Foreigners may execute holographic wills in
their own language.
This separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the New Civil Code
— and not those found in Articles 813 and 814 of the same Code
— are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand
could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and
must be affirmed.
As a general rule, courts in probate proceedings are limited to
pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not
powerless to do what the situation constrains them to do, and
pass upon certain provisions of the will. 11 In the case at bench,
decedent herself indubitably stated in her holographic will that
the Cabadbaran property is in the name of her late father, John
H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held
by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except
with respect to the invalidity of the disposition of the entire house
and lot in Cabadbaran, Agusan del Norte. The Decision of the
Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No.
Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Cabadbaran property. No costs.
SO ORDERED.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE
COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the
Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-R)
reversing that of the Court of First Instance of Cebu (Civ. Case
No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the
decision of the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe
de la Serna and Gervasia Rebaca, executed a joint last
will and testament in the local dialect whereby they
willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall
be given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did not
give us any child in our union, Manuela Rebaca being
married to Nicolas Potot", and that "while each of the
testators is yet living, he or she will continue to enjoy
the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax
No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu. Bernabe dela
Serna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and
Manuela before the Court of First Instance of Cebu
which, after due publication as required by law and
5
 there being no opposition, heard the evidence, and, by
Order of October 31, 1939; in Special Proceedings No.
499, "declara legalizado el documento Exhibit A como
el testamento y ultima voluntad del finado Bernabe de
la Serna con derecho por parte du su viuda superstite
Gervasia Rebaca y otra testadora al propio tiempo
segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor
de la logataria universal Manuela Rebaca de Potot
previa prestacion por parte de la misma de una fianza
en la sum de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta
fecha" (Act Esp. 499, Testamentaria Finado Bernabe
de la Serna) Upon the death of Gervasia Rebaca on
October 14, 1952, another petition for the probate of
the same will insofar as Gervasia was concerned was
filed on November 6, 1952, being Special Proceedings
No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot
and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on
March 30, 1954 Spec. Proc. No. 1016-R, In the matter
of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and
declared the testament null and void, for being executed
contrary to the prohibition of joint wills in the Civil Code (Art. 669,
Civil Code of 1889 and Art. 818, Civil Code of the Philippines);
but on appeal by the testamentary heir, the Court of Appeals
reversed, on the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive on the
due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818,
new Civil Code). prohibits the making of a will jointly by
two or more persons either for their reciprocal benefit
or for the benefit of a third person. However, this form
of will has long been sanctioned by use, and the same
has continued to be used; and when, as in the present
case, one such joint last will and testament has been
admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no
alternative except to give effect to the provisions
thereof that are not contrary to law, as was done in the
case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the
joint will therein mentioned, saying, "assuming that the
joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased
husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of
probate, entered in 1939 by the Court of First Instance of Cebu
(when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even
then the Civil Code already decreed the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of
a third party (Art. 669, old Civil Code). The error thus committed
by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of
the probate court, nor the conclusive effect of its final decision,
however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156);
and public policy and sound practice demand that at the risk of
occasional errors judgment of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited
in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la
Cerna, are concluded by the 1939 decree admitting his will to
probate. The contention that being void the will cannot be
validated, overlooks that the ultimate decision on Whether an
act is valid or void rests with the courts, and here they have
spoken with finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also,
to avoid future misunderstanding, that the probate decree in
1989 could only affect the share of the deceased husband,
Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and
over whose interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate could not
then be in issue. Be it remembered that prior to the new Civil
Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate
of the wife was concerned, must be, on her death, reexamined
and adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding of the
court of First Instance of Cebu that the joint will is one prohibited
by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should
pass upon her death to her heirs intestate, and not exclusively
to the testamentary heir, unless some other valid will in her favor
is shown to exist, or unless she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact that joint wills should
be in common usage could not make them valid when our Civil
Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code
of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the
Court of Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
6
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,1 promulgated on May 4, 1973 in CA G.R.
No. 36523-R which reversed the 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:
7
 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 3 of the aforesaid decision and such motion was
opposed 4 by petitioner-appellant Lutgarda Santiago.
Thereafter. parties submitted their respective Memoranda, 5and
on August 28, 1973, respondent Court, Former Special First
Division, by Resolution 6 denied the motion for reconsideration
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 8 of private respondent thereon, We denied the
petition by Resolution on November 26, 1973, 9 the question
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 10 which private
respondent answered by way of her Comment or
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder
to Reply followed. Finally, 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
8
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) 12 and Tapas
vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in
the more recent cases of Baptisia vs. Carillo and 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
9
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
10
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
11
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
12
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."
13
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.
G.R. No. 17857 June 12, 1922
In re will of Josefa Zalamea y Abella, deceased.
PEDRO UNSON, petitioner-appellee,
vs.
ANTONIO ABELLA, ET AL., opponents-appellants.
Crispin Oben for appellants.
Pedro Guevarra and Carlos Ledesma for appellee.
VILLAMOR, J.:
On July 19, 1918, Doña Josefa Zalamea y Abella, single, 60
years old, who was residing in the municipality of Pagsanjan,
Province of Laguna, executed her last will and testament with
an attached inventory of her properties, Exhibits A and A-1, in
the presence of three witnesses, who signed with her all the
pages of said documents. The testatrix died on the 6th of
January, 1921, and, as the record shows, the executor
appointed in the will, Pedro Unson, filed in the court of First
Instance of Laguna on the 19th of January of the same year an
application for the probate of the will and the issuance of the
proper letters of administration in his favor.
To said application an opposition was presently by Antonio
Abella, Ignacia Abella, Avicencia Abella, and Santiago Vito,
14
alleging that the supposed will of the deceased Zalamea was
not executed in conformity with the provinces of the law,
inasmuch as it was not paged correlatively in letters, nor was
there any attestation clause in it, nor was it signed by the
testatrix and the witnesses in the presence of each other.
Trial having been held, the judge a quo overruled the opposition
of the contestants, and ordered the probate of the will, Exhibit A,
and the inventory, Exhibit A-1, holding that both documents
contained the true and last will of the deceased Josefa Zalamea.
From the judgment of the court below, the contestants have
appealed, and in their brief they assign three errors, which, in
their opinion, justify the reversal of the judgment appealed from.
The first error assigned by the appellants as committed by the
court below is its finding to the effect that Exhibit A, said to be
the will of the deceased Josefa Zalamea, was executed with all
the solemnities required by the law.
The arguments advanced by appellants' counsel in support of
the first assignment of error tend to impeach the credibility of the
witnesses for the proponent, specially that of Eugenio Zalamea.
We have made a careful examination of the evidence, but have
not found anything that would justify us in disturbing the finding
of the court a quo. The attesting witnesses, Eugenio Zalamea
and Gonzalo Abaya, clearly testify that together with the other
witness to the will, Pedro de Jesus, they did sign each and every
page of the will and of the inventory in the presence of each
other and of the testatrix, as the latter did likewise sign all the
pages of the will and of the inventory in their presence.
In their brief the appellants intimate that one of the pages of the
will was not signed by the testatrix, nor by the witnesses on the
day of the execution of the will, that is, on the 19th of July, 1918,
basing their contention on the testimony of Aurelio Palileo, who
says that on one occasion Gonzalo Abaya told him that one of
the pages of the will had not been signed by the witnesses, nor
by the testatrix on the day of its execution. Palileo's testimony is
entirely contradicted by Gonzalo Abaya not only in the direct, but
in the rebuttal, evidence as well. To our mind, Palileo's testimony
cannot prevail over that of the attesting witnesses, Gonzalo
Avaya and Eugenio Zalamea. The appellants impeach the
credibility of Eugenio Zalamea, for having made a sworn
declaration before the justice of the peace of Santa Cruz,
Laguna, before the trial of this case, to the effect that he was
really one of the witnesses to the will in question, which fact was
corroborated by himself at the trial. The appellants take
Zalamea's testimony in connection with the dismissal of a
criminal case against a nephew of his, in whose success he was
interested, and infer from this fact the partiality of his testimony.
We deem this allegation of little importance to impeach the
credibility of the witness Zalamea, especially because his
testimony is corroborated by the other attesting witness.
Gonzalo Abaya, and by attorney Luis Abaya, who had prepared
the testament at the instance of the testatrix. The foregoing is
sufficient for us to conclude that the first assignment of error
made by the appellants is groundless.
The appellants contend that the court below erred in admitting
the will to probate notwithstanding the omission of the proponent
to produce one of the attesting witnesses.
At the trial of this case the attorneys for the proponent stated to
the court that they had necessarily to omit the testimony of
Pedro de Jesus, one of the persons who appear to have
witnessed the execution of the will, for there were reasonable
grounds to believe that said witness was openly hostile to the
proponent, inasmuch as since the announcement of the trial of
the petition for the probate of the will, said witness has been in
frequent communication with the contestants and their attorney,
and has refused to hold any conference with the attorneys for
the proponent. In reply to this, the attorney for the contestants,
said to the court, "without discussing for the present whether or
not in view of those facts (the facts mentioned by the attorneys
for the petitioner), in the hypothesis that the same are proven,
they are relieved from producing that witness, for while it is a
matter not decided, it is a recognized rule that the fact that a
witness is hostile does not justify a party to omit his testimony;
without discussing this, I say, I move that said statement be
stricken out, and if the proponent wants these facts to stand to
stand in the record, let him prove them." The court a quo ruled,
saying, "there is no need."
To this ruling of the court, the attorney for the appellants did not
take any exception.
In the case of Avera vs. Garcia and Rodriguez (42 Phil., 145),
recently decided by this court, in deciding the question whether
a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing
or accounting for the absence of the other two, it was said; "while
it is undoubtedly true that an uncontested will may be proved by
the testimony of only one of the three attesting witnesses,
nevertheless in Cabang vs. Delfinado (34 Phil., 291), this court
declared after an elaborate examination of the American and
English authorities that when a contest is instituted, all of the
attesting witnesses must be examined, if alive and within reach
of the process of the court.
In the present case no explanation was made at the
trial as to why all three of the attesting witnesses were
not produced, but the probable reason is found in the
fact that, although the petition for the probate of this will
had been pending from December 21, 1917, until the
date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the
hearing; and it is probable that the attorney for the •
proponent, believing in good faith that probate would
not be contested, repaired to the court with only one of
the three attesting witnesses at hand, and upon finding
that the will was contested, incautiously permitted the
case to go to proof without asking for a postponement
of the trial in order that he might produce all the
attesting witnesses.
Although this circumstance may explain why the three
witnesses were not produced, it does not in itself
supply any basis for changing the rule expounded in
the case above referred to; and were it not for a fact
now to be mentioned, this court would probably be
compelled to reverse this case on the ground that the
execution of the will had not been proved by a sufficient
number of attesting witnesses.
It appears, however, that this point was not raised by
the appellant in the lower court either upon the
submission of the cause for determination in that court
or upon the occasion of the filing of the motion for a
new trial. Accordingly it is insisted for the appellee that
this question cannot now be raised for t he first time in
this court. We believe this point is well taken, and the
first assignment of error must be declared not to be well
taken. This exact question has been decided by the
15
 Supreme Court of California adversely to the
contention of the appellant, and we see no reason why
the same rule of practice should not be observed by us.
(Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate
tribunals are disinclined to permit certain questions to
be raised for the first time in the second instance. In the
first place it eliminates the judicial criterion of the Court
of First Instance upon the point there presented and
makes the appellate court in effect a court of first
instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it
permits, if it does not encourage, attorneys to trifle with
the administration of justice by concealing from the trial
court and from their opponent the actual point upon
which reliance is placed, while they are engaged in
other discussions more simulated than real. These
considerations are, we think, decisive.
In ruling upon the point above presented we do not
wish to be understood as laying down any hard and
fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one
way or another we are constantly here considering
aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the
litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of
the cases brought before it. What we mean to declare
is that when we believe that substantial justice has
been done in the Court of First Instance, and the point
relied on for reversal in this court appears to be one
which ought properly to have been presented in that
court, we will in the exercise of a sound discretion
ignore such question upon appeal; and this is the more
proper when the question relates to a defect which
might have been cured in the Court of First Instance if
attention had been called to it there. In the present
case, if the appellant had raised this question in the
lower court, either at the hearing or upon a motion for
a new trial, that court would have had the power, and it
would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in
order that all the witnesses to the will might be brought
into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first
raised by the appellant in this court. We hold that this
is too late.
Properly understood, the case of Cabang vs.
Delfinado, supra, contains nothing inconsistent with the
ruling we now make, for it appears from the opinion in
that case that the proponent of the will had obtained an
order for a republication and new trial for the avowed
purpose of presenting the two additional attesting
witnesses who had not been previously examined, but
nevertheless subsequently failed without any apparent
reason to take their testimony. Both parties in that case
were therefore fully apprised that the question of the
number of witnesses necessar to prove the will was in
issue in the lower court.
In the case at bar, we do not think this question properly to have
been raised at the trial, but in the memorandum submitted by
the attorney for the appellants to the trial court, he contended
that the will could not be admitted to probate because one of the
witnesses to the will was not produced, and that the voluntary
non-production of this witness raises a presumption against the
pretension of the proponent. The trial court found that the
evidence introduced by the proponent, consisting of the
testimony of the two attesting witnesses and the other witness
who was present at the execution, and had charge of the
preparation of the will and the inventory, Exhibits A and A-1, was
sufficient. As announced in Cabang vs. Delfinado, supra, the
general rule is that, where opposition is made to the probate of
a will, the attesting witnesses must be produced. But there are
exceptions to this rule, for instance, when a witness is dead, or
cannot be served with process of the court, or his reputation for
truth has been questioned or he appears hostile to the cause of
the proponent. In such cases, the will may be admitted to
probate without the testimony of said witness, if, upon the other
proofs adduced in the case, the court is satisfied that the will has
been duly executed. Wherefore, we find that the non-production
of the attesting witness, Pedro de Jesus, as accounted for by
the attorney for the proponent at the trial, does not render void
the decree of the court a quo, allowing the probate.
But supposing that said witness, when cited, had testified
adversely to the application, this would not by itself have change
the result reached by the court a quo, for section 632 of the
Code of Civil Procedure provides that a will can be admitted to
probate, notwithstanding that one or more witnesses do not
remember having attested it, provided the court is satisfied upon
the evidence adduced that the will has been executed and
signed in the manner prescribed by the law.
The last error assigned by the appellants is made to consist in
the probate of the inventory, Exhibit A-1, despite the fact that
this exhibit has no attestation clause in it, and its paging is made
in Arabic numerals and not in letters.
In the third paragraph of the will, reference is made to the
inventory, Exhibit A-1, and at the bottom of said will, the testatrix
Josefa Zalamea says:
In witness whereof, I sign this will composed of ten
folios including the page containing the signatures and
the attestation of the witnesses; I have likewise signed
the inventory attached to this will composed of ten
folios in the presence of Messrs. Gonzalo Abaya,
Eugenio Zalamea, Pedro de Jesus, in this municipality
of Pagsanjan, Laguna, Philippine Islands, this 19th of
July, 1918.
And the attestation clause is as follows:
The foregoing will composed of ten folios including this
one whereunto we have affixed our signatures, as well
as the inventory of the properties of Doña Josefa
Zalamea y Abella, was read to Doña Josefa Zalamea
y Abella, and the latter affixed her name to the last, and
each and every page of this will and inventory
composed of ten folios in our presence; and she
declared this to be her last will and testament and at
her request we have affixed hereunto our respective
signatures in her presence and in the presence of each
other as witnesses to the will and the inventory this
19th of July, 1918, at Pagsanjan, Laguna, P.I.
(Sgd.) GONZALO ABAYA,
EUGENIO ZALAMEA,
PEDRO DE JESUS.
16
In view of the fact that the inventory is referred to in the will as
an integral part of it, we find that the foregoing attestation clause
is in compliance with section 1 of Act No. 2645, which requires
this solemnity for the validity of a will, and makes unnecessary
any other attestation clause at the end of the inventory.
As to the paging of the will in Arabic numerals, instead of in
letters, we adhere to the doctrine announced in the case
of Aldaba vs. Roque (p. 378, ante), recently decided by this
court. In that case the validity of the will was assailed on the
ground that its folios were paged with the letters A, B, C, etc.,
instead of with the letters "one," two," "three," etc. It was held
that this way of numbering the pages of a will is in compliance
with the spirit of the law, inasmuch as either one of these
methods indicates the correlation of the pages and serves to
prevent the abstraction of any of them. In the course of the
decision, we said: "It might be said that the object of the law in
requiring that the paging be made in letters is to make
falsification more difficult, but it should be noted that since all the
pages of the testament are signed at the margin by the testatrix
and the witnesses, the difficulty of forging the signatures in either
case remains the same. In other words the more or less degree
of facility to imitate the writing of the letters A, B, C, etc., does
not make for the easiness to forge the signatures. And as in the
present case there exists the guaranty of the authenticity of the
testament, consisting in the signatures on the left margins of the
testament and the paging thereof as declared in the attestation
clause, the holding of this court in Abangan vs. Abangan (40
Phil., 476), might as well be repeated:
"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. So when an
interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary,
useless, and frustrative of the testator's last will, must
be disregarded."
In that case the testament was written on one page, and the
attestation clause on another. Neither one of these pages was
numbered in any way, and it was held: "In a will consisting of
two sheets the first of which contains all the testamentary
dispositions and is signed at the bottom by the testator and three
witnesses, and the second contains only the attestation clause
and is signed also at the bottom by the three witnesses it is not
necessary that both sheets be further signed on their margins
by the testator and the witnesses, or be paged."
This means that, according to the particular case, the emission
of paging does not necessarily render the testament invalid.
The law provides that the numbering of the pages should be in
letters placed on the upper part of the sheet, but if the paging
should be placed in the lower part, would the testament be void
for this sole reason? We believe not. The law also provides that
the testator and the witnesses must sign the left margin of each
of the sheets of the testament; but if they should sign on the right
margin, would this fact also annul the testament? Evidently not.
This court has already held in Avera vs. Garcia and
Rodriguez (42 Phi., 145):
"It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the
left margin of each and every page; and it is undeniable
that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully
complied with. The same execution for wills must be
fully complied with. The same doctrine is also
deducible from cases heretofore decided by this court."
"Still some details at time creep into legislative
enactments which are so trivial that it would be absurd
to suppose that the Legislature could have attached
any decisive importance to them. The provision to the
effect that the signatures of the testator and witnesses
shall be written on the left margin of each page —
rather than on the margin — seems to be of this
character. So far as concerns the authentication of the
will, and of every part thereof, it can make no possible
difference whether the names appear on the left or on
the right margin, provided they are on one or the other.
In Craig vs. Tatlonghari (G. R. No. 12558, decided
March 23, 1918, not reported), this court declared a will
void which was totally lacking in the signatures
required to be written on its several pages; and in the
case of Re Estate of Saguinsin (41 Phil., 875) a will
was likewise declared void which contained the
necessary signatures on the margin of each leaf (folio),
but not in the margin of each page containing written
matter."
We do not desire to intimate that the numbering in letters is a
requisite of no importance. But since its principal object is to give
the correlation of the pages, we hold that his object may be
attained by writing one, two, three, etc., as well as by writing A,
B, C, etc.
We see no reason why the same rule should not be applied
where the paging is in Arabic numerals, instead of in letters, as
in the inventory in question. So that, adhering to the view taken
by this court in the case of Abangan vs. Abangan, and followed
in Aldava vs. Roque, with regard to the appreciation of the
solemnities of a will, we find that the judgement appealed from
should be, as is hereby, affirmed with the costs against the
appellants. So ordered.
17
G.R. No. 40445 August 17, 1934
In re estate of the deceased Leonarda Macam y Capili.
NICOLASA MACAM, petitioner-appellant,
vs.
JUANA GATMAITAN, oppositor-appellant.
Reyes and Reyes for petitioner-appellant.
Magno S. Gatmaitan for oppositor-appellant.
VILLA-REAL, J.:
This case comprises two appeals, one taken by the petitioner
Nicolasa Macam and the other by the oppositor Juana
Gatmaitan, from an order of the Court of First Instance of
Bulacan, the dispositive part of which reads as follows:
In view of the neglect or abandonment by the
interested parties of their claims during the
proceedings for the probate of the will, and it appearing
that the was already become final and it appearing that
the order allowing the will has already become final and
executory, the court is of the opinion that it is now too
late to consider the so-called codicil as well as the
instrument from which Juana Gatmaitan derives her
alleged right.
Wherefore, the petition for the probate of the codicil as
well as the opposition thereto filed by Juana Gatmaitan
is dismissed, without prejudice to whatever right the
latter may have in an appropriate proceeding before
the committee on claims and appraisal, in accordance
with law. So ordered.
In support of her appeal, the petitioner Nicolasa Macam assigns
the following alleged errors as having been committed by the
trial court in said decision, to wit:
1. The lower court erred in holding that the parties have
abandoned their respective claims during the
proceedings for the probate of the will.
2. The lower court erred in declaring that it was already
too late to raise the question as to the legal efficacy of
the codicil executed by the deceased.
3. The lower court erred in dismissing the petition for
the probate of the codicil before any of the parties had
presented evidence pertinent to the matter.
The oppositor Juana Gatmaitan, in turn, assigns the following
alleged errors as having been committed by the court a quo in
said decision, to wit:
1. The lower court erred in holding that in order for
Juana Gatmaitan to preserve her rights, so far as to
oppose the probate of the codicil, it was her duty to
oppose to the probate of the will; and, having opposed
the probate only of the codicil, she could no longer avail
herself of the document in her favor, so as to affect the
testamentary dispositions of the deceased Leonarda
Macam.
2. The lower court erred in dismissing the opposition of
Juana Gatmaitan to the probate of the alleged codicil.
The appellants assignments of error, considered together, raise
the following questions of law:
1. Is the probate of a will by final judgment prior to that
of a codicil thereof bar to the probate of said codicil?
2. Does the failure to the file opposition to the probate
of a will constitute a bar to the presentation of the
codicil for probate?
The following pertinent facts, which are disclosed by the
pleadings, are necessary for the resolution of the questions
raised in this appeal.
On March 27, 1933, Nicolasa Macam filed in the Court of First
Instance of Bulacan a petition for the probate of the will dated
July 12, 1932, and of the codicil thereof dated February 17,
1933, executed by Leonarda Macam who died on March 18,
1933, in the municipality of Calumpit, of said Province of
Bulacan, and for her appointment as executrix without bond.
When the petition was called for hearing on April 24, 1933, in
the absence of the judge, the clerk of the Court of First Instance
of Bulacan, upon instructions of said judge to proceed to take
the evidence in the absence of any opposition, took the evidence
relative to the probate of the will, no opposition to the same
having been filed. Inasmuch as Juana Gatmaitan filed
opposition to the probate of the codicil, said clerk deemed
himself unauthorized to take the evidence relative thereto and
refrained from so doing.
The will and the evidence for its probate having been submitted
to the court the vacation Judge Hon. M. Rosauro, on April 28,
1933, entered an order allowing said will and appointing the
petitioner Nicolasa Macam as executrix.
On July 6, 1933, after notice to the parties, the codicil was called
for hearing, opposition having been filed by Juana Gatmaitan,
one of the legatees instituted in the will which had already been
allowed by final and executory judgment. After hearing counsel
for the respective parties, Judge Francisco Enage, then
presiding over the Court of First Instance of Bulacan, entered
the order the dispositive part of which has been quoted at the
beginning of this decision.
Section 625 of the Code of Civil Procedure provides as follows:
SEC. 625. Allowance necessary, and conclusive as to
execution.—No will shall pass either the real or
personal estate, unless it is proved and allowed in the
Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real
and personal estate shall be conclusive as to its due
execution.
Interpreting the above legal provisions as regards the scope of
the allowance of a will, this court, in numerous decisions, has
laid down the doctrine that the probate of a will is conclusive as
to its due execution and as to the testamentary capacity of the
testator, but not as to the validity of its provisions, and in probate
proceedings the courts are without jurisdiction to determine
questions concerning the validity of the provisions of the will.
18
(Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5
Phil., 436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs.
Ventenilla, 21 Phil., 180; In re Estate of Johnson, 39 Phil., 156;
Riera vs. Palmaroli, 40 Phil., 105.)
A codicil is a written instrument wherein one declares
his last will, in order to take from or add something to
the will, or clarify the provisions thereof. (Spanish
Cyclopedia of Law, vol. 5, page 918.)
A codicil has been defined as some addition to or
qualification of one's last will and testament. (28 R. C.
L., 197.)
The exercise of the right to make a will, as a voluntary act,
implies the right to revoke, and article 737 of the Civil Code
expressly provides that wills are essentially revocable, provided
that the partial or total revocation is made with the formalities
required for making it, in accordance with the provisions of
article 738 of the same Code.
The fact that a will has been allowed without opposition and the
order allowing the same has become final and executory is not
a bar to the presentation and probate of a codicil, provided it
complies with all the necessary formalities for executing a will
required by section 614 of the Code of Civil Procedure, as
amended by section 1 of Act No. 1934.
It is not necessary that the will and the codicil be probated
together, as the codicil may be concealed by an interested party
and it may not be discovered until after the will has already been
allowed; and they may be presented and probated one after the
other (40 Cyc., 1228), since the purpose of the probate
proceedings is merely to determine whether or not the will and
the codicil meet all the statutory requirements for their extrinsic
validity, leaving the validity of their provisions for further
consideration.
The appeal taken by the petitioner Nicolasa Macam is,
therefore, well founded and the court a quo erred in flatly,
denying her petition for the probate of the codicil on the
erroneous ground that said codicil should have been presented
at the same time as the will.
With respect to the opposition of the oppositor-appellant Juana
Gatmaitan, the fact that she failed to file opposition to the
probate of the will does not prevent her from filing opposition to
the probate of the codicil thereof, inasmuch as the will may
satisfy all the external requisites necessary for its validity, but
the codicil may, at the time of its execution, not be in conformity
therewith. If the testator had testamentary capacity at the time
of the execution of the will, and the will was executed in
accordance with all the statutory requirements, opposition to its
probate would not lie. On the contrary, if at the time of the
execution of the codicil the testator lacked some of the
subjective requisites legally capacitating him to execute the
same, or all the statutory requirements were not complied with
in the execution thereof, opposition to its probate would lie.
The court a quo, therefore, erred in dismissing the opposition
filed by the oppositor-appellant Juana Gatmaitan to the probate
of the codicil of the will of the deceased Leonarda Macam.
In view of the foregoing, we are of the opinion and so hold: (1)
That the fact that a will has been probated and the order allowing
the same has become final and executory is not a bar to the
presentation and probate of a codicil, although its existence was
known at the time of the probate of the will; (2) that the failure of
the oppositor to the probate of a codicil to file opposition to the
probate of the will, having knowledge of such proceedings, does
not constitute an abandonment of a right, nor does it deprive her
of the right to oppose the probate of said codicil.
Wherefore, the order appealed from is reversed and it is ordered
that the petition for the probate of the codicil filed by the
petitioner Nicolasa Macam, as well as the opposition to said
probate filed by the oppositor Juana Gatmaitan, be reinstated,
without special pronouncement as to costs. So ordered.
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO,
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us.
In fact, two other cases directly related to the present one and
involving the same parties had already been decided by us in
the past. In G.R. No. L-30479, 1 which was a petition for
certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy
of the petitioners is a separate proceeding for the probate of the
will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which
was opposed by the private respondents presently, Panfilo and
Felino both surnamed Maloto. The trial court dismissed the
petition on April 30, 1970. Complaining against the dismissal,
again, the petitioners came to this Court on a petition for review
by certiorari. 2 Acting on the said petition, we set aside the trial
court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have
already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's
decision to the Intermediate Appellate Court which, on June 7,
1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail,
hence, this petition.
For a better understanding of the controversy, a factual account
would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her
niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto
and Felino Maloto. Believing that the deceased did not leave
behind a last will and testament, these four heirs commenced
on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court
of First Instance of Iloilo and was docketed as Special
Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties —
19
Aldina, Constancio, Panfilo, and Felino — executed an
agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal
parts among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should have
signalled the end of the controversy, but, unfortunately, it had
not.
Three years later, or sometime in March 1967, Atty. Sulpicio
Palma, a former associate of Adriana's counsel, the late Atty.
Eliseo Hervas, discovered a document entitled "KATAPUSAN
NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
and purporting to be the last will and testament of Adriana. Atty.
Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was
submitted to the office of the clerk of the Court of First Instance
of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino
are still named as heirs in the said will, Aldina and Constancio
are bequeathed much bigger and more valuable shares in the
estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed.
The will likewise gives devises and legacies to other parties,
among them being the petitioners Asilo de Molo, the Roman
Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the
other devisees and legatees named in the will, filed in Special
Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of
the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus
assailing the orders of the trial court . 3 As we stated earlier, we
dismissed that petition and advised that a separate proceeding
for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive
the matter on whether or not the document or papers allegedly
burned by the househelp of Adriana, Guadalupe Maloto Vda. de
Coral, upon instructions of the testatrix, was indeed the will,
contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus
revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the
facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty. Hervas
to retrieve a copy of the will left in the latter's possession, and,
her seeking the services of Atty. Palma in order to have a new
will drawn up. For reasons shortly to be explained, we do not
view such facts, even considered collectively, as sufficient
bases for the conclusion that Adriana Maloto's will had been
effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix
and the due execution of the will. The heart of the case lies on
the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can
be found in Article 830.
Art. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or
obliterating the will with the intention of
revoking it, by the testator himself, or by some
other person in his presence, and by his
express direction. If burned, torn cancelled, or
obliterated by some other person, without the
express direction of the testator, the will may
still be established, and the estate distributed
in accordance therewith, if its contents, and
due execution, and the fact of its unauthorized
destruction, cancellation, or obliteration are
established according to the Rules of Court.
(Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning
in this case, does not per se constitute an effective revocation,
unless the destruction is coupled with animus revocandi on the
part of the testator. It is not imperative that the physical
destruction be done by the testator himself. It may be performed
by another person but under theexpress direction and in
the presence of the testator. Of course, it goes without saying
that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke,
may be conceded, for that is a state of mind, yet that requisite
alone would not suffice. "Animus revocandi is only one of the
necessary elements for the effective revocation of a last will and
testament. The intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or cancelling
the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one,
the document or papers burned by Adriana's maid, Guadalupe,
was not satisfactorily established to be a will at all, much less
the will of Adriana Maloto. For another, the burning was not
proven to have been done under the express direction of
Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence
presented by the private respondents as oppositors in the trial
court, concluded that the testimony of the two witnesses who
testified in favor of the will's revocation appear "inconclusive."
We share the same view. Nowhere in the records before us does
it appear that the two witnesses, Guadalupe Vda. de Corral and
Eladio Itchon, both illiterates, were unequivocably positive that
the document burned was indeed Adriana's will. Guadalupe, we
think, believed that the papers she destroyed was the will only
because, according to her, Adriana told her so. Eladio, on the
other hand, obtained his information that the burned document
was the will because Guadalupe told him so, thus, his testimony
on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of
public interest that a purported win is not denied legalization on
dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the
present action for probate instituted by the petitioners argue that
the same is already barred by res adjudicata. They claim that
20
this bar was brought about by the petitioners' failure to appeal
timely from the order dated November 16, 1968 of the trial court
in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow
the last will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case,
the following requisites must concur: (1) the presence of a final
former judgment; (2) the former judgment was rendered by a
court having jurisdiction over the subject matter and the parties;
(3) the former judgment is a judgment on the merits; and (4)
there is, between the first and the second action, Identity of
parties, of subject matter, and of cause of action. 5 We do not
find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment
rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special Proceeding
No. 1736, although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of
the subsequently discovered will of the decedent. Neither is it a
judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the
contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of
proving its due execution and validity, something which can not
be properly done in an intestate settlement of estate proceeding
which is predicated on the assumption that the decedent left no
will. Thus, there is likewise no Identity between the cause of
action in intestate proceeding and that in an action for probate.
Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners
instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the
private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation
could be inferred from the fact that "(a) major and substantial
bulk of the properties mentioned in the will had been disposed
of: while an insignificant portion of the properties remained at
the time of death (of the testatrix); and, furthermore, more
valuable properties have been acquired after the execution of
the will on January 3,1940." 7 Suffice it to state here that as
these additional matters raised by the private respondents are
extraneous to this special proceeding, they could only be
appropriately taken up after the will has been duly probated and
a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and
SETTING ASIDE the Decision dated June 7, 1985 and the
Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y
LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-
appellants.
Claro M. Recto and Serafin C. Dizon for appellants.
Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of
Rizal admitting to probate the last will and testament of the
deceased Mariano Molo y Legaspi executed on August 17,
1918. The oppositors-appellants brought the case on appeal to
this Court for the reason that the value of the properties involved
exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the
municipality of Pasay, province of Rizal, without leaving any
forced heir either in the descending or ascending line. He was
survived, however, by his wife, the herein petitioner Juana Juan
Vda. de Molo, and by his nieces and nephew, the oppositors-
appellants, Luz Gliceria and Cornelio, all surnamed Molo, who
were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918, (Exhibit A) and
another executed on June 20, 1939. (Exhibit I). The later will
executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the
Court of First Instance of Rizal a petition, which was docketed
as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition filed
by the herein oppositors, the order of the court admitting the will
to probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence, the
court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was
executed in accordance with law.
In view of the disallowance of the will executed on June 20,
1939, the widow on February 24, 1944, filed another petition for
the probate of the will executed by the deceased on August 17,
1918, which was docketed as special proceeding No. 56, in the
same court. Again, the same oppositors filed an opposition to
the petition based on three grounds: (1) that petitioner is now
estopped from seeking the probate of the will of 1918; (2) that
said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before
the second petition could be heard, the battle for liberation came
and the records of the case were destroyed. Consequently, a
petition for reconstitution was filed, but the same was found to
be impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to
the one destroyed, to which the oppositors filed an opposition
based on the same grounds as those contained in their former
opposition. Then, the case was set for trial, and on May 28,
1948, the court issued an order admitting the will to probate
already stated in the early part of this decision. From this order
the oppositors appealed assigning six errors, to wit.
21
 I. The probate court erred in not holding that the
present petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain
the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the
petitioner is now estopped from seeking the probate of
Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner
herein has come to court with "unclean hands" and as
such is not entitled to relief.
IV. The probate court erred in not holding that Molo's
alleged will of August 17, 1918 was not executed in the
manner required by law.
V. The probate court erred in not holding that the
alleged will of 1918 was deliberately revoked by Molo
himself.
VI. The lower court erred in not holding that Molo's will
of 1918 was subsequently revoked by the decedent's
will of 1939.
In their first assignment of error, counsel for oppositors contend
that the probate court erred in not holding that the petitioner
voluntarily and deliberately frustrated the probate of the will
dated June 20, 1939, in order to enable her to obtain the probate
of the will executed by the deceased on August 17, 1918,
pointing out certain facts and circumstances with their opinion
indicate that petitioner connived with the witness Canuto Perez
in an effort to defeat and frustrate the probate of the 1939 will
because of her knowledge that said will intrinsically defective in
that "the one and only testamentory disposition thereof was a
"disposicion captatoria". These circumstances, counsel for the
appellants contend, constitute a series of steps deliberately
taken by petitioner with a view to insuring the realization of her
plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in
connection with special proceedings No. 8022, now closed and
terminated, are vigorously met by counsel for petitioner who
contends that to raise them in these proceedings which are
entirely new and distinct and completely independent from the
other is improper and unfair as they find no support whatsoever
in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not
supported by any proof. For this reason, counsel, contends, the
lower court was justified in disregarding them and in passing
them sub silentio in its decision.
A careful examination of the evidence available in this case
seems to justify this contention. There is indeed no evidence
which may justify the insinuation that petitioner had deliberately
intended to frustrate the probate of the 1939 will of the deceased
to enable her to seek the probate of another will other than a
mere conjecture drawn from the apparently unexpected
testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given her by
the court to do so. Apart from this insufficiency of evidence, the
record discloses that this failure has been explained by
petitioner when she informed the court that she was unable to
impeach the character of her witness Canuto Perez because of
her inability to find witnesses who may impeach him, and this
explanation stands uncontradicted. Whether this explanation is
satisfactory or not, it is not now, for us to determine. It is an
incident that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio Reyes at
the hearing has also been explained, and it appears that
petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It
is likewise within the province and function of the court in the
former case. And the unfairness of this imputation becomes
more glaring when we stock of the developments that had taken
place in these proceedings which show in bold relief the true
nature of the conduct, behavior and character of the petitioner
so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the
will executed on June 20, 1939, was filed on February 7, 1941,
by the petitioner. There being no opposition, the will was
probated. Subsequently, however, upon petition of the herein
oppositors, the order of the court admitting said will to probate
was set aside, over the vigorous opposition of the herein
petitioner, and the case was reopened. The reopening was
ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by
law. After the evidence of both parties had been presented, the
oppositors filed an extensive memorandum wherein they
reiterated their view that the will should be denied probate. And
on the strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective
and would make the testamentary disposition in her favor invalid
and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a
lawyer, there was no need her to go through the order of filing
the petition for the probate of the will. She could accomplish her
desire by merely suppressing the will or tearing or destroying it,
and then take steps leading to the probate of the will executed
in 1918. But for her conscience was clear and bade her to take
the only proper step possible under the circumstances, which is
to institute the necessary proceedings for the probate of the
1939 will. This she did and the will was admitted to probate. But
then the unexpected happened. Over her vigorous opposition,
the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was
reopened. Her motion for reconsideration was denied. Is it her
fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants
not filed their opposition to the probate of the will and had they
limited their objection to the intrinsic validity of said will, their plan
to defeat the will and secure the intestacy of the deceased would
have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own
effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the
court did not commit the second and third errors imputed to it by
the counsel for appellants. Indeed, petitioner cannot be
considered guilty or estoppel which would prevent her from
seeking the probate of the 1918 will simply because of her effort
to obtain the allowance of the 1939 will has failed considering
that in both the 1918 and 1939 wills she was in by her husband
as his universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the intestacy
22
of her husband. She cannot be blamed being zealous in
protecting her interest.
The next contention of appellants refers to the revocatory clause
contained in 1939 will of the deceased which was denied
probate. They contend that, notwithstanding the disallowance of
said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the
doctrine laid down in the case of Samson vs. Naval, (41 Phil.,
838). He contends that the facts involved in that case are on all
fours with the facts of this case. Hence, the doctrine is that case
is here controlling.
There is merit in this contention. We have carefully read the facts
involved in the Samson case we are indeed impressed by their
striking similarity with the facts of this case. We do not need to
recite here what those facts are; it is enough to point out that
they contain many points and circumstances in common. No
reason, therefore, is seen by the doctrine laid down in that case
(which we quote hereunder) should not apply and control the
present case.
A subsequent will, containing a clause revoking a
previous will, having been disallowed, for the reason
that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure
as to the making of wills, cannot produce the effect of
annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the
remark that, while they do not disagree with the soundness of
the ruling laid down in the Samson case, there is reason to
abandon said ruling because it is archaic or antiquated and runs
counter to the modern trend prevailing in American
jurisprudence. They maintain that said ruling is no longer
controlling but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we consider
the fact that section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin and as such
should follow the prevailing trend of the majority view in the
United States. A long line of authorities is cited in support of this
contention. And these authorities hold the view, that "an express
revocation is immediately effective upon the execution of the
subsequent will, and does not require that it first undergo the
formality of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained
by counsel for oppositors, and that view appears to be in
controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the
assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the
subject, we found ourselves in a pool of conflicting opinions
perhaps because of the peculiar provisions contained in the
statutes adopted by each State in the subject of revocation of
wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down in
the Samson case is still a good law. On page 328 of the
American Jurisprudence Vol. 57, which is a revision Published
in 1948, we found the following passages which in our opinion
truly reflect the present trend of American jurisprudence on this
matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of
Instrument. — Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed
with the same formalities which are required to be
observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the
making of a valid will, an unattested non testamentary
writing is not effective to revoke a prior will. It has been
held that a writing fails as a revoking instrument where
it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the
will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A
testator cannot reserve to himself the power to modify
a will by a written instrument subsequently prepared
but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or
Ineffective Will or Codicil. — A will which is invalid
because of the incapacity of the testator, or of undue
influence can have no effect whatever as a revoking
will. Moreover, a will is not revoked by the unexecuted
draft of a later one. Nor is a will revoked by a defectively
executed will or codicil, even though the latter contains
a clause expressly revoking the former will, in a
jurisdiction where it is provided by a controlling statute
that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that
there is no revoking will. Similarly where the statute
provides that a will may be revoked by a subsequent
will or other writing executed with the same formalities
as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it
cannot be said that there is a writing which complies
with the statute. Moreover, a will or codicil which, on
account of the manner in which it is executed, is
sufficient to pass only personally does not affect
dispositions of real estate made by a former will, even
though it may expressly purport to do so. The intent of
the testator to revoke is immaterial, if he has not
complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports,
Annotated, edited in 1939. On page 1400, Volume 123, there
appear many authorities on the "application of rules where
second will is invalid", among which a typical one is the
following:
It is universally agreed that where the second will is
invalid on account of not being executed in accordance
with the provisions of the statute, or where the testator
who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the
such, in other words, where the second will is really no
will, it does not revoke the first will or affect it in any
manner. Mort vs. Baker University (193-5) 229 Mo.
App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on
which the ruling in the Samson case is predicated. They reflect
the opinion that this ruling is sound and good and for this reason,
we see no justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil
Procedure) provides that a will may be some will, codicil, or other
23
writing executed as proved in case of wills" but it cannot be said
that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided
in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of
said clause, there is authority for holding that unless said writing
is admitted to probate, it cannot have the effect of revocation.
(See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said
revocatory clause, said will of 1918 cannot still be given effect
because of the presumption that it was deliberately revoked by
the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the
recovatory clause contained said will, himself deliberately
destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.
There is no evidence which may directly indicate that the testator
deliberately destroyed the original of the 1918 will because of
his knowledge of the revocatory clause contained in the will he
executed in 1939. The only evidence we have is that when the
first will was executed in 1918, Juan Salcedo, who prepared it,
gave the original and copies to the testator himself and
apparently they remained in his possession until he executed
his second will in 1939. And when the 1939 will was denied
probate on November 29, 1943, and petitioner was asked by her
attorney to look for another will, she found the duplicate copy
(Exhibit A) among the papers or files of the testator. She did not
find the original.
If it can be inferred that the testator deliberately destroyed the
1918 will because of his knowledge of the revocatory clause of
the 1939 will, and it is true that he gave a duplicate copy thereof
to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the
fact that said duplicate copy remained in the possession of
petitioner. It is possible that because of the long lapse of twenty-
one (21) years since the first will was executed, the original of
the will had been misplaced or lost, and forgetting that there was
a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain
of circumstances, the stubborn fact is that there is no direct
evidence of voluntary or deliberate destruction of the first will by
the testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was
voluntarily destroyed by the testator after the execution of the
second will, which revoked the first, could there be any doubt,
under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary
because he had expressly revoked it in his will of 1939? In other
words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid
and the latter would be given effect? If such is the case, then it
is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative
revocation, and is usually applied where the testator
cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute
for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n
limited to the existence of some other document,
however, and has been applied where a will was
destroyed as a consequence of a mistake of law. . . .
(68 C.J.P. 799).
The rule is established that where the act of destruction
is connected with the making of another will so as fairly
to raise the inference that the testator meant the
revocation of the old to depend upon the efficacy of a
new disposition intended to be substituted, the
revocation will be conditional and dependent upon the
efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will
remains in full force. (Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation.
The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive conditions, and
hence prevents the revocation of the original will. But a
mere intent to make at some time a will in the place of
that destroyed will not render the destruction
conditional. It must appear that the revocation is
dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the
destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it in court, such
destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief
that the will of 1939 has been validly executed and would be
given due effect. The theory on which this principle is predicated
is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two
different occasion and instituted his wife as his universal heir.
There can therefore be no mistake as to his intention of dying
testate.
The remaining question to be determined refers to the
sufficiency of the evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three
witnesses, Lorenzo Morales, Rufino Enriquez, and Angel
Cuenca. The first two witnesses died before the commencement
of the present proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and precedents,
his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca
but placed on the witness stand Juan Salcedo, the notary public
who prepared and notarized the will upon the express desire and
instruction of the testator, The testimony of these witnesses
shows that the will had been executed in the manner required
by law. We have read their testimony and we were impressed
by their readiness and sincerity. We are convinced that they told
the truth.
Wherefore, the order appealed from is hereby affirmed, with
costs against the appellants.1âwphïl.nêt
24