Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

A.M. No. 2026-CFI December 19, 1981

NENITA DE VERA SUROZA, complainant,

vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:

Should disciplinary action be taken against respondent judge for having admitted to probate a will, which
on its face is void because it is written in English, a language not known to the illiterate testatrix, and
which is probably a forged will because she and the attesting witnesses did not appear before the notary
as admitted by the notary himself?

That question arises under the pleadings filed in the testate case and in the certiorari case in the Court of
Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley, married
Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They reared a boy
named Agapito who used the surname Suroza and who considered them as his parents as shown in his
1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina in 1923).

Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal Government.
That explains why on her death she had accumulated some cash in two banks.

Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian in
1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First Instance
of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).

In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito and
that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of testate
case).

Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a veteran's
hospital in San Francisco or Palo Alto, California (p. 87, Record).

On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child named
Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl friend of
Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as a supposed
daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP-08654-R). Marilyn
used the surname Suroza. She stayed with Marcelina but was not legally adopted by Agapito. She
married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati, apparently a neighbor of
Marina Paje, a resident of 7668 J.B. Roxas Street.

Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to the
Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter Marilyn.

Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her death,
she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150-square meter
lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate case).

On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and the
executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's husband),
filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelina's
alleged will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before the
deputy clerk of court are not in the record.

In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the following
day, April 1, Judge Honrado issued two orders directing the Merchants Banking Corporation and the Bank
of America to allow Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the passbooks, to deliver
them to Marina.

Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a deputy
sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza, and to place
Marina in possession thereof.

That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the decedent's son
Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that Nenita was Agapito's
guardian and that Marilyn was not Agapito's daughter nor the decedent's granddaughter (pp. 52-68,
Record of testate case). Later, they questioned the probate court's jurisdiction to issue the ejectment
order.

In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein Marilyn
was the instituted heiress (pp. 74-77, Record).

On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Marina and Marilyn and that the
thumbmarks of the testatrix were procured by fraud or trick.

Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of Agapito
and that Marina was not qualified to act as executrix (pp. 83-91, Record).

To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who swore
that the alleged will was falsified (p. 109, Record).

Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus motion to
set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an opposition to the
probate of the will and a counter-petition for letters of administration. In that opposition, Nenita assailed
the due execution of the will and stated the names and addresses of Marcelina's intestate heirs, her
nieces and nephews (pp. 113-121, Record). Nenita was not aware of the decree of probate dated April
23, 1975.

To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito was
not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).

Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of letters
of administration because of the non-appearance of her counsel at the hearing. She moved for the
reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the notary
and because it is written in English which is not known to her (pp. 208-209, Record).

Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).

Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul" the
probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and Honrado (p.
398, Record), was also assigned to Judge Honrado. He dismissed it in his order of February 16, 1977
(pp. 398-402, Record).

Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered the
estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita charged
Judge Honrado with having probated the fraudulent will of Marcelina. The complainant reiterated her
contention that the testatrix was illiterate as shown by the fact that she affixed her thumbmark to the will
and that she did not know English, the language in which the win was written. (In the decree of probate
Judge Honrado did not make any finding that the will was written in a language known to the testatrix.)

Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son named
Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the will, did not
take into account the consequences of such a preterition.

Nenita disclosed that she talked several times with Judge Honrado and informed him that the testatrix did
not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and that she was not
the next of kin of the testatrix.

Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.

She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since Judge
Honrado would not change his decision. Nenita also said that Evangeline insinuated that if she (Nenita)
had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly advised Nenita to
desist from claiming the properties of the testatrix because she (Nenita) had no rights thereto and, should
she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint. He
merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a motion
dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the testatrix.

Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.

Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the record.
Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline) said that the
sum of ten thousand pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenita's pension from the Federal Government.

The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A. Sison of
the Court of Appeals for investigation, report and recommendation. He submitted a report dated October
7, 1981.

On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the proceedings in
the probate case be declared void.

Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that the
testatrix and the three attesting witnesses did not appear before him and that he notarized the will "just to
accommodate a brother lawyer on the condition" that said lawyer would bring to the notary the testatrix
and the witnesses but the lawyer never complied with his commitment.

The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure to do
so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CA-G.R. No.
SP-08654, May 24, 1981).

Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.

We hold that disciplinary action should be taken against respondent judge for his improper disposition of
the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs
and not the instituted heiress in the void win should have inherited the decedent's estate.

A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).

Administrative action may be taken against a judge of the court of first instance for serious misconduct or
inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of
judgment. "For serious misconduct to exist, there must be reliable evidence showing that the judicial acts
complained of were corrupt or inspired by an intention to violate the law, or were in persistent disregard of
well-known legal rules" (In relmpeachment of Horrilleno, 43 Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence and
circumspection which the law requires in the rendition of any public service (In re Climaco, Adm. Case
No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).

In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.

In the opening paragraph of the will, it was stated that English was a language "understood and known" to
the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and
translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a language or
dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is
void and was disallowed (Acop vs. Piraso, 52 Phil. 660).

The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where
Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".

Had respondent judge been careful and observant, he could have noted not only the anomaly as to the
language of the will but also that there was something wrong in instituting the supposed granddaughter as
sole heiress and giving nothing at all to her supposed father who was still alive.

Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could
have noticed that the notary was not presented as a witness.

In spite of the absence of an opposition, respondent judge should have personally conducted the hearing
on the probate of the will so that he could have ascertained whether the will was validly executed.

Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.

WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent to
his salary for one month is imposed on respondent judge (his compulsory retirement falls on December
25, 1981).

The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao City.
She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November
21, 1980, 101 SCRA 225).

SO ORDERED.

Barredo (Chairman), De Castro, Ericta and Escolin JJ., concur.

Concepcion Jr., J., is on leave.

Abad Santos, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10907 June 29, 1957

AUREA MATIAS, petitioner,

vs.
HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents.

J. Gonzales Orense for petitioner.

Venancio H. Aquino for respondents.

CONCEPCION, J.:

Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as
Judge of the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said
court, entitled "Testate Estate of the Deceased Gabina Raquel."

On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a
document purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May
8, 1952, at the age of 92 years. The heir to the entire estate of the deceased — except the properties
bequeathed to her other niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud,
Santos Matias and Rafael Matias — is, pursuant to said instrument, Aurea Matias, likewise, appointed
therein as executrix thereof, without bond. Basilia Salud, a first cousin of the deceased, opposed the
probate of her alleged will, and, after appropriate proceedings, the court, presided over by respondent
Judge, issued an order, dated February 8, 1956, sustaining said opposition and denying the petition for
probate. Subsequently, Aurea Matias brought the matter on appeal to this Court (G.R. No. L-10751),
where it is now pending decision.

Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as
special administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata.
The motion was set for hearing on February 23, 1956, on which date the court postponed the hearing to
February 27, 1956. Although notified of this order, Rodriguez did not appear on the date last mentioned.
Instead, he filed an urgent motion praying for additional time within which to answer the charges preferred
against him by Basilia Salud and for another postponement of said hearing. This motion was not granted,
and Basilia Salud introduced evidence in support of said charges, whereupon respondent Judge by an
order, dated February 27, 1956, found Rodriguez guilty of abuse of authority and gross negligence, and,
accordingly, relieved him as special administrator of the estate of the deceased and appointed Basilia
Salud as special administratrix thereof, to "be assisted and advised by her niece, Miss Victorina Salud,"
who "shall always act as aide, interpreter and adviser of Basilia Salud." Said order, likewise, provided that
"Basilia Salud shall be helped by Mr. Ramon Plata . . . who is hereby appointed as co-administrator."

On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be
appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is
over eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office,
and that said movant is the universal heiress of the deceased and the person appointed by the latter as
executrix of her alleged will. This motion was denied in an order dated March 10, 1956, which maintained
"the appointment of the three above named persons" — Basilia Salud, Ramon Plata and Victorina Salud
— "for the management of the estate of the late Gabina Raquel pending final decision on the probate of
the alleged will of said decedent." However, on March 17, 1956, Basilia Salud tendered her resignation as
special administratrix by reason of physical disability, due to old age, and recommended the appointment,
in her place, of Victorina Salud. Before any action could be taken thereon, or on March 21, 1956, Aurea
Matias sought a reconsideration of said order of March 10, 1956. Moreover, on March 24, 1956, she
expressed her conformity to said resignation, but objected to the appointment, in lieu of Basilia Salud, of
Victorina Salud, on account of her antagonism to said Aurea Matias — she (Victorina Salud) having been
the principal and most interested witness for the opposition to the probate of the alleged will of the
deceased — and proposed that the administration of her estate be entrusted to the Philippine National
Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution authorized
by law therefor, should the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.

Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested
authority to collect the rents due, or which may be due, to the estate of the deceased and to collect all the
produce of her lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed
another motion praying for permission to sell the palay of the deceased then deposited in different rice
mills in the province of Cavite, which respondent judge granted on June 10, 1956. Later on, or on July 10,
1956, petitioner instituted the present action against Judge Gonzales, and Victorina Salud and Ramon
Plata, for the purpose of annulling the above mentioned orders of respondent Judge, upon the ground
that the same had been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the choice of special
administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and,
the executrix appointed in the alleged will of the deceased, that until its final disallowance — which has
not, as yet, taken place she has a special interest in said estate, which must be protected by giving
representation thereto in the management of said estate; that, apart from denying her any such
representation, the management was given to persons partial to her main opponent, namely, Basilia
Salud, inasmuch as Victorina Salud is allied to her and Ramon Plata is a very close friend of one of her
(Basilia Salud's) attorneys; that Basilia Salud was made special administratrix despite her obvious
unfitness for said office, she being over eighty (80) years of age and blind; that said disability is borne out
by the fact that on March 17, 1956, Basilia Salud resigned as special administratrix upon such ground;
that the Rules of Court do not permit the appointment of more than one special administrator; that
Horacio Rodriguez was removed without giving petitioner a chance to be heard in connection therewith;
and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the deceased and
the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.

Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction
and without any abuse of discretion; that petitioner can not validly claim any special interest in the estate
of the deceased, because the probate of the alleged will and testament of the latter — upon which
petitioner relies — has been denied; that Horacio Rodriguez was duly notified of the proceedings for his
removal; and that Victorina Salud and Ramon Plata have not done anything that would warrant their
removal.

Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for
the following reasons:

1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February
17, 1956, the record shows that petitioner herein received copy of said motion of February 24, 1956, or
the date after that set for the hearing thereof. Again, notice of the order of respondent Judge, dated
February 23, 1956, postponing said hearing to February 27, 1956, was not served on petitioner herein.

2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and
the appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no
notice that her main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be
considered for the management of said. As a consequence, said petitioner had no opportunity to object to
the appointment of Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and
adviser, and the order of February 27, 1956, to this effect, denied due process to said petitioner.

3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise
respondent Judge would not have directed that she "be assisted and advised by her niece Victorina
Salud," and that the latter "shall always act as aide, interpreter and adviser of Basilia Salud."

4. Thus, respondent Judge, in effect, appointed three (3) special administrators — Basilia Salud, Victorina
Salud and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained
"the appointment of the three (3) above-named persons for the management of the estate of the late
Gabina Raquel."

5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias
and Basilia Salud regarding the person to be appointed special administrator of the estate of the
deceased. The former proposed Horacio Rodriguez, whereas the latter urged the appointment of
Victorina Salud. By an order dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe,
Judge, decided the matter in favor of Horacio Rodriguez and against Victorina Salud, upon the ground
that, unlike the latter, who, as a pharmacist and employee in the Santa Isabel Hospital, resides In the City
of Manila, the former, a practicing lawyer and a former public prosecutor, and later, mayor of the City of
Cavite, is a resident thereof. In other words, the order of resident thereof. In other words, the order of
respondent Judge of February 27, 1956, removing Rodriguez and appointing Victorina Salud to the
management of the estate, amounted to a reversal of the aforementioned order of Judge Bernabe of
August 11, 1952.

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

7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely,
one, represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong.
Inasmuch as the lower court had deemed it best to appoint more than one special administrator, justice
and equity demands that both factions be represented in the management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be
appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the
facts obtaining in said case. The lower court appointed therein one special administrator for some
properties forming part of said estate, and a special administratrix for other properties thereof. Thus, there
were two (2) separate and independent special administrators. In the case at bar there is only one (1)
special administration, the powers of which shall be exercised jointly by two special co-administrators. In
short, the Roxas case is not squarely in point. Moreover, there are authorities in support of the power of
courts to appoint several special co-administrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A.
514; In re Wilson's Estate, 61 N.Y.S. 2d., 49; Davenport vs. Davenport, 60 A. 379).

Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear
the matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to
all parties concerned, for action in conformity with the views expressed herein, with costs against
respondents Victorina Salud and Ramon Plata. It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-6285 February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.

A. M. Jimenez for appellant.

Ramon Querubin for appellees.

MORELAND, J.:

This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another, No.
6284,1 just decided by this court, wherein there was an application for the probate of an alleged last will
and testament of the same person the probate of whose will is involved in this suit.

This appeal arises out of an application on the part of Pedro Barut to probate the last will and testament
of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria Salomon died on the
7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last will and testament bearing
date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged
to have been witnesses to the execution thereof. By the terms of said will Pedro Barut received the larger
part of decedent's property.

The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into Spanish
appears at page 11. After disposing of her property the testatrix revoked all former wills by her made. She
also stated in said will that being unable to read or write, the same had been read to her by Ciriaco
Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign her name to it as
testatrix.

The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred to as
being a later will is the one involved in case No. 6284 already referred to. Proceeding for the probate of
this later will were pending at the time. The evidence of the proponents and of the opponents was taken
by the court in both cases for the purpose of considering them together.

In the case before us the learned probate court found that the will was not entitled to probate upon the
sole ground that the handwriting of the person who it is alleged signed the name of the testatrix to the will
for and on her behalf looked more like the handwriting of one of the other witnesses to the will than that of
the person whose handwriting it was alleged to be. We do not believe that the mere dissimilarity in writing
thus mentioned by the court is sufficient to overcome the uncontradicted testimony of all the witnesses to
the will that the signature of the testatrix was written by Severo Agayan at her request and in her
presence and in the presence of all the witnesses to the will. It is immaterial who writes the name of the
testatrix provided it is written at her request and in her presence and in the presence of all the witnesses
to the execution of the will.

The court seems , by inference at least, to have had in mind that under the law relating to the execution of
a will it is necessary that the person who signs the name of the testatrix must afterwards sign his own
name; and that, in view of the fact that, in the case at bar, the name signed below that of the testatrix as
the person who signed her name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid, such fact indicating that the person
who signed the name of the testatrix failed to sign his own. We do not believe that this contention can be
sustained. Section 618 of the Code of Civil Procedure reads as follows:

No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or by
the testator's name written by some other person in his presence, and by his expenses direction,
and attested and subscribed by three or more credible witnesses in the presence of the testator
and of each. . . .

This is the important part of the section under the terms of which the court holds that the person who
signs the name of the testator for him must also sign his own name The remainder of the section reads:

The attestation shall state the fact that the testator signed the will, or caused it to be signed by
some other person, at his express direction, in the presence of three witnesses, and that they
attested and subscribed it in his presence and in the presence of each other. But the absence of
 such form of attestation shall not render the will invalid if it is proven that the will was in fact
signed and attested as in this section provided.

From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is that it
clearly appears that the name of the testatrix was signed at her express direction in the presence of three
witnesses and that they attested and subscribed it in her presence and in the presence of each other.
That is all the statute requires. It may be wise as a practical matter that the one who signs the testator's
name signs also his own; but that it is not essential to the validity of the will. Whether one parson or
another signed the name of the testatrix in this case is absolutely unimportant so far as the validity of her
will is concerned. The plain wording of the statute shows that the requirement laid down by the trial court,
if it did lay down, is absolutely unnecessary under the law; and the reasons underlying the provisions of
the statute relating to the execution of wills do not in any sense require such a provision. From the
standpoint of language it is an impossibility to draw from the words of the law the inference that the
persons who signs the name of the testator must sign his own name also. The law requires only three
witnesses to a will, not four.

Nor is such requirement found in any other branch of the law. The name of a person who is unable to
write may be signed by another by express direction to any instrument known to the law. There is no
necessity whatever, so far as the validity of the instrument is concerned, for the person who writes the
name of the principal in the document to sign his own name also. As a matter of policy it may be wise that
he do so inasmuch as it would give such intimation as would enable a person proving the document to
demonstrate more readily the execution by the principal. But as a matter of essential validity of the
document, it is unnecessary. The main thing to be established in the execution of the will is the signature
of the testator. If that signature is proved, whether it be written by himself or by another at his request, it is
none the less valid, and the fact of such signature can be proved as perfectly and as completely when the
person signing for the principal omits to sign his own name as it can when he actually signs. To hold a will
invalid for the lack of the signature of the person signing the name of the principal is, in the particular
case, a complete abrogation of the law of wills, as it rejects and destroys a will which the statute
expressly declares is valid.

There have been cited three cases which it is alleged are in opposition to the doctrine which we have
herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil. Rep., 700),
and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The headnote in the
case last above stated gives an indication of what all of cases are and the question involved in each one
of them. It says:

The testatrix was not able to sign it for her. Instead of writing her name he wrote his own upon the
will. Held, That the will was not duly executed.

All of the above cases are precisely of this character. Every one of them was a case in which the person
who signed the will for the testator wrote his own name to the will instead of writing that of the testator, so
that the testator's name nowhere appeared attached to the will as the one who executed it. The case
of Ex parte Arcenas contains the following paragraph:

Where a testator does not know, or is unable for any reason, to sign the will himself, it shall be
signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form: "By the
testator. John Doe, Richard Roe." All this must be written by the witness signing at the request of
the testator.

The only question for decision in that case, as we have before stated, was presented by the fact that the
person who was authorized to sign the name of the testator to the will actually failed to sign such name
but instead signed his own thereto. The decision in that case related only to that question.

Aside from the presentation of an alleged subsequent will the contestants in this case have set forth no
reason whatever why the will involved in the present litigation should not be probated. The due and legal
execution of the will by the testatrix is clearly established by the proofs in this case. Upon the facts,
therefore, the will must be probated. As to the defense of a subsequent will, that is resolved in case No.
6284 of which we have already spoken. We there held that said later will not the will of the deceased.

The judgment of the probate court must be and is hereby reversed and that court is directed to enter an
order in the usual form probating the will involved in this litigation and to proceed with such probate in
accordance with law.

Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring:

The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not expressly
require that, when the testator or testatrix is unable or does not know how to sign, the person who, in the
presence and under the express direction of either of them, writes in the name of the said testator or
testatrix must also sign his own name thereto, it being sufficient for the validity of the will that the said
person so requested to sign the testator or testatrix write the name of either in his own handwriting.

Since this court began to decide cases with regard to the form, conditions and validity of wills executed in
accordance with the provisions of the Code of Civil Procedure, never has the specific point just above
mentioned been brought into question. Now for the first time is affirmed in the majority opinion, written by
the learned and distinguished Hon. Justice Moreland, that, not being required by the said code, the
signature of the name of the person who, at the request of the testator or testatrix, writes the name of
either of the latter to the will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in which, as will be
seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its
observance in cases where the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the provisions of the law on the
subject. Among these decisions several were written by various justices of this court, some of whom are
no longer on this bench, as they have ceased to hold such position.

Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a will,
reads as follows:

Wills, authentication of . — Where a will is not signed by a testator but by some other person in
his presence and by his direction, such other person should affix the name of the testator thereto,
and it is not sufficient that he sign his own name for and instead of the name of the testator.

Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a will,
states:

1. Wills, requisites of; Civil Code, article repealed. — Article 695 of the Civil Procedure;
consequently where a testator is unable to sign his name, the person signing at his request must
write at the bottom of the will the full name of the testator in the latter's presence, and by his
express direction, and then sign his own name in full.

In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:

Wills; inability to sign; signature by another. — The testatrix was not able to sign her name to the
will, and she requested another person to sign it for her. Held, That the will was not duly
executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas et al.,
No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)

The following syllabus precedes decision No. 3907:4

Execution of wills. — Where it appears in a will that the testator has stated that by reason of his
inability to sign his name he requested one of the three witnesses present to do so, and that as a
matter of fact, the said witness wrote the name and surname of the testator who, stating that the
instrument executed by him contained his last will, put the sign of the cross between his said
name and surname, all of which details are set forth in a note which the witnesses forthwith
subscribed in the presence of the testator and of each other, said will may be probated.

When the essential requisites of section 618 of the Code of Civil Procedure for the execution and
validity of a will have been complied with, the fact that the witness who was requested to sign the
name of the testator, omitted to state the words 'by request of .......... the testator,' when writing
with his own hand the name and surname of the said testator, and the fact that said witness
subscribed his name together with the other witnesses and not below the name of the testator,
does not constitute a defect nor invalidate the said will.

The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:5

The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.

Moreover among the grounds given as a basis for this same decision, the following appears:

In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In
the Arcenas case the court pointed out the correct formula for a signature which ought to be
followed, but did not mean to exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:

The testatrix was unable to sign her will with her own hand and requested another person to sign
for her in her presence. This the latter did, first writing the name of the testatrix and signing his
own name below: Held, That the signature of the testatrix so affixed is sufficient and a will thus
executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)

The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without affecting
its validity.

Among the conclusions contained in this last decision the following is found:

Although the said words "For Simplicia de los Santos" be considered as inserted subsequently,
which we neither affirm nor deny, because a specific determination either way is unnecessary, in
our opinion the signature for the testatrix placed outside of the body of the will contains the name
of the testatrix as if she signed the will, and also the signature of the witness who, at her request,
wrote the name of the testatrix and signed for her, affirming the truth of this fact, attested by the
other witnesses then present. And this fully complies with the provisions of section 618 of the Act.

It is true that in none of the decisions above quoted was the rule established that the person who, at the
request of the testator or testatrix, signed the latter's or the former's name and surname to the will must
affix his own signature; but it no less true that, in prescribing the method in which the provisions of the
said section 618 to be complied with, it was stated that, in order that a will so executed might be admitted
to probate, it was an indispensable requisite that the person requested to sign in place of the testator or
testatrix, should write the latter's or the former's name and surname at the foot of the will in the presence
and under the direction of either, as the case might be, and should afterwards sign the instrument with his
own name and surname.

The statement that the person who writes the name and surname of the testator or testatrix at the foot of
the will should likewise affix his own signature thereto, name and surname, though it be considered to be
neither a rule nor a requisite necessary to follow for the admission of the will to probate, yet it is
unquestionable that, in inserting this last above-mentioned detail in the aforesaid decisions, it was
deemed to be a complement and integral part of the required conditions for the fulfillment of the
provisions of the law.

It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating in
the decisions hereinabove quoted that the name and surname of the said person should be affixed by
him, no act prohibited by law was recommended or suggested, nor may such a detail be understood to be
contrary or opposed to the plain provisions thereof.

In the preceding decision itself, it is recognized to be convenient and even prudent to require that the
person requested to write the name of the testator or testatrix in the will also sign the instrument with his
own name and surname. This statement induces us to believe that, in behalf of the inhabitants of this
country and for sake of an upright administration of justice, it should be maintained that such a signature
must appear in the will, since no harm could accrue to anyone thereby and, on the contrary, it would
serve as a guarantee of the certainty of the act performed and also might eliminate some possible cause
of controversy between the interested parties.

The undersigned feels it his duty to admit that, though convinced of the complete repeal of article 695 of
the Civil Code and, while he conceded that, in the examination and qualification of a will for the purpose
of its probate, one has but to abide by the provisions of said section 618 of the Code of Civil Procedure,
the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled by a traditional
conception of the laws which he has known since youth, relative to the form of execution of testaments,
he believed it to be a vary natural and common sense requisite that the signature, with his own name and
surname, of the person requested to write in the will the name and surname of the testator or testatrix
should form a part of the provisions of the aforementioned section 618.

He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person before
referred to — a requisite deemed to be convenient and prudent in the majority opinion — formed a part of
the provisions of the law, since the latter contains nothing that prohibits it. The aforementioned different
decisions were drawn up in the form in which they appear, and signed without dissent by all the justices
of the court on various dates. None of them hesitated to sign the decisions, notwithstanding that it was
expressly held therein that the person above mentioned should, besides writing in the will the name and
surname of the testator or testatrix, also sign the said instrument with his own name and surname.

Without being understood to criticize the provision contained in the said section 618 of the Code of Civil
Procedure it will not be superfluous to mention that the system adopted in this section is the same as was
in vogue under the former laws that governed in these Islands, with respect to witnesses who were not
able or did not know how to sign their testimony given in criminal or civil cases, in which event any person
at all might write the name and surname of the witness who was unable or did not know how to sign, at
the foot of his deposition, where a cross was then drawn, and, this done, it was considered that the
instrument had been signed by the witness, though it is true that all these formalities were performed
before the judge and the clerk or secretary of the court, which thereupon certified that such procedure
was had in accordance with the law.

The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person who
writes the name and surname of the testator or testatrix does so by the order and express direction of the
one or of the other, and this fact must be recorded in the will; but in the matter of the signature of a
deposition, the witness, who could not or did not know how to sign, did not need to designate anyone to
write the deponent's name and surname, and in practice the witness merely made a cross beside his
name and surname, written by whomever it be.

With regard to the execution of wills in accordance with the provisions of previous statutes, among them
those of the Civil Code, the person or witness requested by the testator or testatrix who was not able or
did not know how to sign, authenticated the will by signing it with his own name and surname, preceded
by the words "at the request of the testator or testatrix." Paragraph 2 of article 695 of the Civil Code
contains the following provisions bearing on the subject:

Should the testator declare that he does not know how, or is not able to sign, one of the attesting
witnesses or another person shall do so for him at his request, the notary certifying thereto. This
shall be done if any one of the witnesses can not sign.

So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by the
old laws with respect to the signing of a will by a testator or testatrix who did not know how or who could
not sign, consisted in that the person appointed and requested by the testator or testatrix to sign in his or
her stead, such fact being recorded in the will, merely affixed at the bottom of the will and after the words
"at the request of the testator," his own name, surname and paragraph.

It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing laws in
the matter of procedure in compliance therewith as regards the execution and signing of a will, should
have believed that, after the name and surname of the testator or testatrix had been written at the foot of
the will, the person who signed the instrument in the manner mentioned should likewise sign the same
with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will with his
own name and surname, and since this suggestion is not opposed or contrary to the law, the undersigned
is of opinion that it ought not to be modified or amended, but that, on the contrary, it should be maintained
as a requisite established by the jurisprudence of this court, inasmuch as such a requisite is not contrary
to law, to public order, or to good custom, is in consonance with a tradition of this country, does not
prejudice the testator nor those interested in an inheritance, and, on the contrary, constitutes another
guarantee of the truth and authenticity of the letters with which the name and surname of the testator of
testatrix are written, in accordance with his or her desire as expressed in the will.

Even though the requisites referred to were not recognized in jurisprudence and were unsupported by
any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs observed in
this country, it ought, in the humble opinion of the writer, to be maintained for the benefit of the inhabitants
of the Islands and for the sake of a good administration of justice, because it is not a question of a
dangerous innovation or of one prejudicial to the public good, but a matter of the observance of a
convenient, if not a necessary detail, introduced by the jurisprudence of the courts and which in the
present case has filed a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises, but in the opinion
of the undersigned, are conducive to the realization of the purposes of justice, have impelled him to
believe that the proposition should be enforced that the witness requested or invited by the testator or
testatrix to write his or her name to the will, should also subscribed the instrument by signing thereto his
own name and surname; and therefore, with the proper finding in this sense, and reversal of the judgment
appealed from, that the court below should be ordered to proceed with the probate of the will of the
decedent, Maria Salomon, in accordance with the law.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.

Anacleto Diaz for appellees.

CARSON, J.:

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

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

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

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

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

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

The decree entered by the court below admitting the instrument propounded therein to probate as the last
will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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

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

Erasmo M. Diola counsel for petition.

Hon. Avelino S. Rosal in his own behalf.

GUTIERREZ, JR. J.:

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

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

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

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

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

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

Meanwhile, the petitioner filed a motion for the appointment of special administrator.

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

The petitioner decided to file the present petition.

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

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

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

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

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

interpreted to the witnesses, it shall be interpreted to them.

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

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

We find the petition meritorious.

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

It must be noted that the law uses the terms attested and subscribed Attestation consists in
witnessing the testator's execution of the will in order to see and take note mentally that those things
are, done which the statute requires for the execution of a will and that the signature of the testator
exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the
same paper for the purpose of Identification of such paper as the will which was executed by the
testator. (Ragsdale v. Hill, 269 SW 2d 911).

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

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

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

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

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

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

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

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

Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal
approach:

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

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

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

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

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

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

Arturo M. Tolentino for appellee.

BENGZON, J.:

On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo
Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.

On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a
petition for the probate of a holographic will allegedly executed by the deceased, substantially in these
words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:

Vicente Esguerra, Sr. 5 Bahagi

.............................................
Fausto E. Gan 2 Bahagi
.........................................................
Rosario E. Gan 2 Bahagi
.........................................................
Filomena Alto 1 Bahagi
..........................................................
Beatriz Alto 1 Bahagi
..............................................................

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

(Lagda) Felicidad E. Alto-Yap.

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

After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to
probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.

The will itself was not presented. Petitioner tried to establish its contents and due execution by the
statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:

Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente
Esguerra, her desire to make a will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her
residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially
of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative, Primitivo
Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.

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

When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she
entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse: and being afraid of him by reason of his well-
known violent temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the
purse to Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed
it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time.2

From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for
several years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr.
Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for
several weeks she was treated for the disease; that thereafter she felt well and after visiting interesting
places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered
several attacks, the most serious of which happened in the early morning of the first Monday of
November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and of by the Yap spouses. Physician's help was
hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in
bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant,
Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made
no will, and could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which
were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her
husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as
she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of
the decedent it is hard to believe that the latter would have allowed the former to see and read the will
several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan
Jimenez and Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret
during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for one reason or another be
opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T.
Hospital and that the will was there, it is hard to believe that he returned it without destroying the will, the
theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy
it.

In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad
did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind.
The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over
the same matters, because in our opinion the case should be decided not on the weakness of the
opposition but on the strength of the evidence of the petitioner, who has the burden of proof.

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

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

This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which
for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the presence of the testator and of each
other.

The object of such requirements it has been said, is to close the door against bad faith and fraud, to
prevent substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476)
and to avoid those who have no right to succeed the testator would succeed him and be benefited with
the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st
Supp. No. 3 p. 194.)

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

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

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

Obviously, when the will itself is not submitted, these means of opposition, and of assessing the
evidence are not available. And then the only guaranty of authenticity3 — the testator's handwriting — has
disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of
witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How
can the oppositor prove that such document was not in the testator's handwriting? His witnesses who
know testator's handwriting have not examined it. His experts can not testify, because there is no way to
compare the alleged testament with other documents admittedly, or proven to be, in the testator's hand.
The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or
the form thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's
witnesses may be honest and truthful; but they may have been shown a faked document, and having no
interest to check the authenticity thereof have taken no pains to examine and compare. Or they may be
perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one
could prove that they have not "been shown" a document which they believed was in the handwriting of
the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased;
but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the
handwriting established, the witness (or witnesses) could simply stick to his statement: he has seen and
read a document which he believed was in the deceased's handwriting. And the court and the oppositor
would practically be at the mercy of such witness (or witnesses) not only as to the execution, but also as
to the contents of the will. Does the law permit such a situation?

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

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

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

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

Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the
will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated when the
document is not presented for their examination. If it be argued that such choice is not essential, because
anyway the relatives may oppose, the answer is that their opposition will be at a distinct disadvantage,
and they have the right and privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.

We find confirmation of these ideas--about exhibition of the document itself--in the decision of the
Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of allegations and testimonial
evidence (which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid
tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce no effect.

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

This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the
Spanish Civil Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los
herederos e sus fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al
juez fasta VI meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su
mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la manda, sea
confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras
testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda. (Art.
689, Scaevola--Codigo Civil.)

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

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

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will
to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).

Taking all the above circumstances together, we reach the conclusion that the execution and the contents
of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have
seen and/or read such will.8

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

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

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

Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer
the fraud this way: after making a clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the
latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost — the forger may have purposely destroyed it in
an "accident" — the oppositors have no way to expose the trick and the error, because the document
itself is not at hand. And considering that the holographic will may consist of two or three pages, and only
one of them need be signed, the substitution of the unsigned pages, which may be the most important
ones, may go undetected.

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

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

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

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think
the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it
fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11

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

Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia
and Felix, JJ.,concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-58509 December 7, 1982

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA

deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor.

Luciano A. Joson for petitioner-appellant.

Cesar Paralejo for oppositor-appellee.

RELOVA, J.:

This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to
Section 3, Rule 50 of the Rules of Court.

As found by the Court of Appeals:

... On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was
opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes Expedita
Bonilla Frias and Ephraim Bonilla on the following grounds:

(1) Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

(2) The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore it
was not a will

(3) The alleged hollographic will itself,and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gam v. Yap, 104 Phil.
509; and

(4 ) The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.

The appellees likewise moved for the consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by the court in an order dated April 4,
1977.

On November 13, 1978, following the consolidation of the cases, the appellees
moved again to dismiss the petition for the probate of the will. They argued that:

(1) The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and

(2) Lost or destroyed holographic wills cannot be proved by secondary evidence

unlike ordinary wills.

Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.

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

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

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

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

Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in
which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.

On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal
does not involve question of fact and alleged that the trial court committed the following assigned
errors:

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL

MAY NOT BE PROVED BY A COPY THEREOF;

II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.

The only question here is whether a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved.
The probate may be uncontested or not. If uncontested, at least one Identifying witness is required
and, if no witness is available, experts may be resorted to. If contested, at least three Identifying
witnesses are required. However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the handwriting
of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be proved by the bare testimony of
witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall
produce no effect. The law regards the document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic
copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.

WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for
reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 176831 January 15, 2010

UY KIAO ENG, Petitioner,

vs.
NIXON LEE, Respondent.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
August 23, 2006 Amended Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and the
February 23, 2007 Resolution,2 denying the motion for reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now
in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001, a
petition for mandamus with damages, docketed as Civil Case No. 01100939, before the Regional Trial
Court (RTC) of Manila, to compel petitioner to produce the will so that probate proceedings for the
allowance thereof could be instituted. Allegedly, respondent had already requested his mother to settle
and liquidate the patriarch’s estate and to deliver to the legal heirs their respective inheritance, but
petitioner refused to do so without any justifiable reason.3

In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the
same be dismissed for failure to state a cause of action, for lack of cause of action, and for non-
compliance with a condition precedent for the filing thereof. Petitioner denied that she was in custody of
the original holographic will and that she knew of its whereabouts. She, moreover, asserted that
photocopies of the will were given to respondent and to his siblings. As a matter of fact, respondent was
able to introduce, as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of
Valenzuela City. Petitioner further contended that respondent should have first exerted earnest efforts to
amicably settle the controversy with her before he filed the suit.4

The RTC heard the case. After the presentation and formal offer of respondent’s evidence, petitioner
demurred, contending that her son failed to prove that she had in her custody the original holographic will.
Importantly, she asserted that the pieces of documentary evidence presented, aside from being hearsay,
were all immaterial and irrelevant to the issue involved in the petition—they did not prove or disprove that
she unlawfully neglected the performance of an act which the law specifically enjoined as a duty resulting
from an office, trust or station, for the court to issue the writ of mandamus. 5

The RTC, at first, denied the demurrer to evidence.6 In its February 4, 2005 Order,7 however, it granted
the same on petitioner’s motion for reconsideration. Respondent’s motion for reconsideration of this latter
order was denied on September 20, 2005.8 Hence, the petition was dismissed.

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied
the appeal for lack of merit. It ruled that the writ of mandamus would issue only in instances when no
other remedy would be available and sufficient to afford redress. Under Rule 76, in an action for the
settlement of the estate of his deceased father, respondent could ask for the presentation or production
and for the approval or probate of the holographic will. The CA further ruled that respondent, in the
proceedings before the trial court, failed to present sufficient evidence to prove that his mother had in her
custody the original copy of the will.91avvphi1

Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended
Decision,10granted the motion, set aside its earlier ruling, issued the writ, and ordered the production of
the will and the payment of attorney’s fees. It ruled this time that respondent was able to show by
testimonial evidence that his mother had in her possession the holographic will.

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court
denied this motion in the further assailed February 23, 2007 Resolution. 11

Left with no other recourse, petitioner brought the matter before this Court, contending in the main that
the petition for mandamus is not the proper remedy and that the testimonial evidence used by the
appellate court as basis for its ruling is inadmissible.12

The Court cannot sustain the CA’s issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that—

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of
law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the respondent, immediately or at some
other time to be specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the
respondent.13

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or
the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person
requiring the performance of a particular duty therein specified, which duty results from the official station
of the party to whom the writ is directed or from operation of law. 14 This definition recognizes the public
character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of
enforcing the performance of duties in which the public has no interest. 15 The writ is a proper recourse for
citizens who seek to enforce a public right and to compel the performance of a public duty, most
especially when the public right involved is mandated by the Constitution. 16 As the quoted provision
instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the
performance of an act which the law enjoins as a duty resulting from an office, trust or station. 17

The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to
do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by
law.18 Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a
substantial doubt exists, although objection raising a mere technical question will be disregarded if the
right is clear and the case is meritorious.19 As a rule, mandamus will not lie in the absence of any of the
following grounds: [a] that the court, officer, board, or person against whom the action is taken unlawfully
neglected the performance of an act which the law specifically enjoins as a duty resulting from office,
trust, or station; or [b] that such court, officer, board, or person has unlawfully excluded petitioner/relator
from the use and enjoyment of a right or office to which he is entitled. 20 On the part of the relator, it is
essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of respondent to perform the act required. 21

Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce
contractual obligations.22 Generally, mandamus will not lie to enforce purely private contract rights, and
will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is
imposed.23 The writ is not appropriate to enforce a private right against an individual. 24 The writ of
mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and,
regularly, issues only in cases relating to the public and to the government; hence, it is called a
prerogative writ.25 To preserve its prerogative character, mandamus is not used for the redress of private
wrongs, but only in matters relating to the public.26

Moreover, an important principle followed in the issuance of the writ is that there should be no plain,
speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus being
invoked.27 In other words, mandamus can be issued only in cases where the usual modes of procedure
and forms of remedy are powerless to afford relief.28 Although classified as a legal remedy, mandamus is
equitable in its nature and its issuance is generally controlled by equitable principles. 29 Indeed, the grant
of the writ of mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved here—
the production of the original holographic will—is in the nature of a public or a private duty, rules that the
remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy
and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of
the will and that he seeks the production of the original for purposes of probate. The Rules of Court,
however, does not prevent him from instituting probate proceedings for the allowance of the will whether
the same is in his possession or not. Rule 76, Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.—Any executor, devisee, or legatee named in a will,
or any other person interested in the estate, may, at any time, after the death of the testator, petition the
court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost
or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original
holographic will. Thus—

SEC. 2. Custodian of will to deliver.—The person who has custody of a will shall, within twenty (20) days
after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the
executor named in the will.
SEC. 3. Executor to present will and accept or refuse trust.—A person named as executor in a will shall
within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he
knows that he is named executor if he obtained such knowledge after the death of the testator, present
such will to the court having jurisdiction, unless the will has reached the court in any other manner, and
shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept
it.

SEC. 4. Custodian and executor subject to fine for neglect.—A person who neglects any of the duties
required in the two last preceding sections without excuse satisfactory to the court shall be fined not
exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.—A person having custody of a will after the death of the
testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court
having jurisdiction, may be committed to prison and there kept until he delivers the will.30

There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the
subject will, the remedy of mandamus cannot be availed of. Suffice it to state that respondent Lee lacks a
cause of action in his petition. Thus, the Court grants the demurrer.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23,
2006 Amended Decision and the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. SP
No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of
Manila is DISMISSED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

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

ROSA K. KALAW, petitioner,

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

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:

On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be the sole heir of
his deceased sister, Natividad K. Kalaw, filed a petition before the Court of First Instance of
Batangas, Branch VI, Lipa City, for the probate of her holographic Will executed on December 24,
1968.

The holographic Will reads in full as follows:

My Last will and Testament

In the name of God, Amen.

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

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

xxx xxx xxx

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

Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic

will the testator must authenticate the same by his full signature.

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

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

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

The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit "C". Finding the insertions, alterations and/or additions in Exhibit
 "C" not to be authenticated by the full signature of the testatrix Natividad K. Kalaw,
the Court will deny the admission to probate of Exhibit "C".

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

SO ORDERED.

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

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

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

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

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

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

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

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

Relova, J., took no part.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

Separate Opinions

TEEHANKEE, J., concurring:

I concur. Rosa, having appealed to this Court on a sole question of law, is bound by the trial court's
factual finding that the peculiar alterations in the holographic will crossing out Rosa's name and
instead inserting her brother Gregorio's name as sole heir and "sole executrix" were made by the
testatrix in her own handwriting. (I find it peculiar that the testatrix who was obviously an educated
person would unthinkingly make such crude alterations instead of consulting her lawyer and writing
an entirely new holographic wig in order to avoid any doubts as to her change of heir. It should be
noted that the first alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second alteration crossing out
"sister Rosa K. Kalaw" and inserting "brother Gregorio Kalaw" as "sole executrix" is initialed.)
Probate of the radically altered will replacing Gregorio for Rosa as sole heir is properly denied, since
the same was not duly authenticated by the full signature of the executrix as mandatorily required by
Article 814 of the Civil Code. The original unaltered will naming Rosa as sole heir cannot, however,
be given effect in view of the trial court's factual finding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kill succeed to
her intestate estate.

Footnotes
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-1323 to L-1435 June 30, 1948

Testate estate of the deceased Petra Angeles. ROSARIO MASCARIÑA, petitioner-appellee,

vs.
ANASTACIO ANGELES, ET AL., oppositors-appellants.

Cenon Arcaya and Pedro Ynsua for appellants.

Gavino C. Peñamante for appellee.

PARAS, J.:

This is an appeal from a judgment of the Court of First Instance of Quezon allowing the last will of
the deceased Petra Angeles as evidence by the document identified in the record as Exhibit C.

It appears that the attestation clause does not state that the contents of the will were read to the
testatrix, who admittedly did not know how to read and write, before the affixed her thumbmark
thereto; and it is thus contended by the oppositors-appellants that such omission is fatal to its
allowance. It is noteworthy, however, that section 618 of the Code of Civil Procedure only requires
that "the attestation shall state the number of sheets or pages used, upon which the will is written,
and the fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of three witnesses, and the latter
witnessed and signed the will and all pages thereof in the presence of the testator and each other."
The requisite invoked by the appellants is clearly not one of those imposed by this provision, the
scope of which should of course not be stretched by judicial construction. As there is undisputed
evidence that the will had been read to Petra Angeles before the latter thumbmarked it, its allowance
by the lower court is absolutely proper.

The appealed judgment is hereby affirmed with costs against the appellants. So ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. L-1433 to L-1435 June 30, 1948

EDILBERTO MORALES, petitioner,

vs.
MELECIO ZAMORA, respondent.

Miguel Socco Reyes for petitioner.

Eulogio R. Lerum for respondent.

BENGZON, J.:

These three cases jointly tried and decided in the Court of First Instance of Manila by agreement of the
parties, were on appeal disposed of by the Court of Appeals in one single decision. They are presently
before us upon petition for certiorari.

In the first, Edilberto Morales seeks to compel Melecio Zamora to accept the sum of P30 as monthly
rental for May, 1945, of the premises he actually occupies as lessee at 1204 Rizal Avenue, Manila. The
second, is a suit by Zamora to reject Morales from the same premises. And the third is another action by
Morales to recover damages occasioned by Morales' refusal to vacate. The Manila court dismissed the
first and third cases but ordered, in the second, that defendant Edilberto Morales shall surrender the
premises to the plaintiff Melecio Zamora paying to him P30 monthly from May 1, 1945, up to the time he
leaves the place. Costs were also awarded. The Court of Appeals affirmed the decision in toto.

Edilberto Morales brought these cases up for review. Hereafter to be called petitioner, he submits these
two main propositions: (a) "That Republic Act No. 66 specifically provides that the plaintiff-appellant
herein cannot be ejected from the premises because the one year period as specifically provided in the
said act has not yet elapsed" and (b) "that the decision of the Court of Appeals declaring the premises
commercial is against the provision of Republic Act No. 66 as stated in the last sentence of section 1 of
the said Act.

The Court of Appeals found, — and we must accept its findings of fact — "that pursuant to an oral lease
contract between Melecio Zamora and Edilberto Morales, the latter, since the month of December, 1941,
had been occupying the premises in litigation located at 1204 Rizal Avenue, where since then he has
been operating barbershop, at a monthly rental of P25 payable during the first five days of each month,
which amount was later raised to P31 a month. It also appears, without contradiction on the part of
Morales, since the month of November, 1944, that he failed to pay the monthly rent on time, and for this
reason, and because appellee Zamora needed the premises in question to establish therein a business of
his own, in May, 1945, he notified appellant (Exhibit A) that the lease contract had expired and that he
should vacate the premises accordingly. Morales contended that Zamora did not object to his continuing
in the occupancy of those premises as long as he kept paying the monthly rentals, but as already stated,
the payment of the rentals was very irregular and in violation of the terms of said contract.

Said Court of Appeals concluded from the above statement that the owner was entitled to his realty under
the provisions of article 1581 of the Civil Code providing that "if no terms has been fixed for the lease, it
shall be understood as from year to year when an annual rent has been fixed, from month to month when
the rent is monthly, and from day to day when it is daily.

The appellate court refused to apply the amendatory provisions of Commonwealth Act. No. 689 and
Republic Act No. 66, explaining that these were not intended to cover "buildings or houses located in a
commercial zone and devoted, as the one involved in this litigation, to the business of a barbershop." In
amplification of its view, the court reasoned "that Rizal Avenue, starting from its intersection with Echague
Street in a northerly direction up to its intersection with Blumentritt Street, is within the purlieus of a
commercial or business district. There is hardly any single building or premises located on Rizal Avenue
which is not occupied for some business or commercial enterprise or purpose, but even granting that the
upper portion of any such building were occupied for dwelling, such facts does not nevertheless change
the nature of the premises which is controlled by its location.

This last consideration is forcefully questioned by the attorney for herein petitioner. There may be some
ground to his protest against the pronouncement that the premises are to be deemed commercial simply
because they are located in Rizal Avenue between Echague and Blumentritt Streets. But the facts
remains that said court found that herein petitioner used the premises for his "barbershop business" —
and that he may not invoke Republic Act No. 66 which applies to "dwellings" only.

On the other hand, it appearing that the upper portion of the structure is used as residence of the family of
Morales he quotes the same law which directs that "building used both as dwelling of the lessee and also
as place of business of the latter for home industries intended for the support of the family shall be
deemed included in the provisions of this Act" (Republic Act No. 66).

On this question we note that the Court of Appeals found the place devoted to "the business of a
barbershop." The respondent states without contradiction that petitioner's establishment has six chairs
(barber's) and employs a number of hair-cutters who do not belong to his family. Wherefore, under the
circumstances we do not believe that herein petitioner may successfully plead the maintenance of a
"home industry" as distinguished from a business establishment. When a barber or tailor pursues his
calling by serving customers in his dwelling, he is merely exercising a home industry and his place of
abode does not thereby become commercial. But when he engages other tailors or barbers to expand his
business and increase his returns, his establishment becomes commercial, and the incidental fact that his
family lives therein would not include him in that class of tenants especially favored by recent emergency
legislation on housing.

It would be ridiculous indeed to hold that the well-appointed barbershops of Sta. Cruz and Quiapo would
be considered "residence" simply because the family of one of the barbers happened to be quartered
there.

This distinction between the pursuit of his industry by an artisan (tailor, barber, shoemaker, tinsmith, etc.)
and his setting up of a commercial establishment for purpose of gain and employing others, is admitted in
legal circles.

For instance, the sales made by artificers in their workshops of the objects produced by them is, by
express statutory provision, considered civil. (Article 326, Code of Commerce). But authors are
unanimous that some such sales are commercial, where the artificer for purposes of gain, sets up a shop,
and employs others, etc.

It is indisputable that, taking into account the nature of the merchantile purchase and sale, the
sales made by artificers of the products of their labor deserve the qualification of being
merchantile, provided always that they have to purchase in order to resell the materials on which
they exercise their trade. It is, however, to be admitted that not all of them have the same end in
view when they acquired the necessary materials for manufacturing purposes, or when they sell
the articles manufactured by them. Some of them perform these acts as an indispensable means
of the exercise of their industry, while others, on the contrary, execute the same with the purpose
of obtaining gain or profit. This difference in purpose which serves to attribute or deny mercantile
character to the same act, is generally manifested by the circumstances under which the artificer
or manufacturer sells his products. When he does not execute the work himself, but desiring to
obtain profit, employs laborers who are paid by him in order to have at the disposal of the public a
large supply of the articles manufactured by them, and exposes such articles in shops or
establishments, it is evident that such person has in view speculation or profit. But he who
confines himself to the manufacture, in his own shop, under orders placed with him, or articles
which constitute his industry or art, has no other purpose but to obtain a livelihood from the
product of his industry. Because of this difference, sales made by the former class of artificers are
regarded commercial, and those by the latter as civil. (3 Echavarri 245-246; 3 Estasen 212-213.)
(Emphasis ours.) (Code of Commerce by Tolentino, Vol. I, pp. 175-76.).

For these reasons we concur in the view of the Court of Appeals that petitioner herein may not validly
invoked the provisions of Commonwealth Act No. 689 and Republic Act No. 66. Being of that opinion, we
deem it unnecessary at this time to consider or expound the extent and scope or practical application of
the change effected by the one-year period provided in the aforementioned statutory enactments.

Judgment affirmed. No costs.