ART 804 issuance in his name of letters of
administration of the intestate estate of Abada
[G.R. No. 147145. January 31, 2005]
TESTATE ESTATE OF THE LATE ALIPIO
ABADA, BELINDA CAPONONG-
NOBLE, petitioner, vs. ALIPIO ABAJA
and NOEL ABELLAR, respondents.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for
review[1] assailing the Decision[2] of the Court of
Appeals of 12 January 2001 in CA-G.R. CV
No. 47644. The Court of Appeals sustained the
Resolution[3] of the Regional Trial Court of
Kabankalan, Negros Occidental, Branch 61
(RTC-Kabankalan), admitting to probate the
last will and testament of Alipio Abada (Abada).
The Antecedent Facts
Abada died sometime in May 1940.[4] His
widow Paula Toray (Toray) died sometime in
September 1943. Both died without legitimate
children.
On 13 September 1968, Alipio C. Abaja
(Alipio) filed with the then Court of First
Instance of Negros Occidental (now RTC-
Kabankalan) a petition,[5] docketed as SP No.
070 (313-8668), for the probate of the last will
and testament (will) of Abada. Abada allegedly
named as his testamentary heirs his natural
children Eulogio Abaja (Eulogio) and Rosario
Cordova. Alipio is the son of Eulogio.
Nicanor Caponong (Caponong) opposed
the petition on the ground that Abada left no
will when he died in 1940. Caponong further
alleged that the will, if Abada really executed it,
should be disallowed for the following reasons:
(1) it was not executed and attested as
required by law; (2) it was not intended as the
last will of the testator; and (3) it was procured
by undue and improper pressure and influence
on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged
intestate heirs of Abada, namely, Joel, Julian,
Paz, Evangeline, Geronimo, Humberto,
Teodora and Elena Abada (Joel Abada, et al.),
and Levi, Leandro, Antonio, Florian, Hernani
and Carmela Tronco (Levi Tronco, et al.), also
opposed the petition. The oppositors are the
nephews, nieces and grandchildren of Abada
and Toray.
On 13 September 1968, Alipio filed another
petition[6] before the RTC-Kabankalan,
docketed as SP No. 071 (312-8669), for the
probate of the last will and testament of Toray.
Caponong, Joel Abada, et al., and Levi Tronco,
et al. opposed the petition on the same
grounds they cited in SP No. 070 (313-8668).
On 20 September 1968, Caponong filed a
petition[7] before the RTC-Kabankalan,
docketed as SP No. 069 (309), praying for the
and Toray.
In an Order dated 14 August 1981, the
RTC-Kabankalan admitted to probate the will
of Toray. Since the oppositors did not file any
motion for reconsideration, the order allowing
the probate of Torays will became final and
executory.[8]
In an order dated 23 November 1990, the
RTC-Kabankalan designated Belinda
Caponong-Noble (Caponong-Noble) Special
Administratrix of the estate of Abada and
Toray.[9]Caponong-Noble moved for the
dismissal of the petition for probate of the will
of Abada. The RTC-Kabankalan denied the
motion in an Order dated 20 August 1991.[10]
Sometime in 1993, during the proceedings,
Presiding Judge Rodolfo S. Layumas
discovered that in an Order dated 16 March
1992, former Presiding Judge Edgardo Catilo
had already submitted the case for decision.
Thus, the RTC-Kabankalan rendered a
Resolution dated 22 June 1994, as follows:
There having been sufficient notice to
the heirs as required by law; that there is
substantial compliance with the formalities of a
Will as the law directs and that the petitioner
through his testimony and the deposition of
Felix Gallinero was able to establish the
regularity of the execution of the said Will and
further, there being no evidence of bad faith
and fraud, or substitution of the said Will, the
Last Will and Testament of Alipio Abada dated
June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel
Abbellar[11] is appointed administrator of the
estate of Paula Toray who shall discharge his
duties as such after letters of administration
shall have been issued in his favor and after
taking his oath and filing a bond in the amount
of Ten Thousand (P10,000.00) Pesos.
Mrs. Belinda C. Noble, the present
administratrix of the estate of Alipio Abada
shall continue discharging her duties as such
until further orders from this Court.
SO ORDERED.[12]
The RTC-Kabankalan ruled on the only
issue raised by the oppositors in their motions
to dismiss the petition for probate, that is,
whether the will of Abada has an attestation
clause as required by law. The RTC-
Kabankalan further held that the failure of the
oppositors to raise any other matter forecloses
all other issues.
Not satisfied with the Resolution,
Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January
2001, the Court of Appeals affirmed the
1
Resolution of the RTC-Kabankalan. The
Page
appellate court found that the RTC-Kabankalan
properly admitted to probate the will of Abada.
Hence, the present recourse by Caponong-
Noble.
The Issues
The petition raises the following issues:
1. What laws apply to the probate of
the last will of Abada;
2. Whether the will of Abada requires
acknowledgment before a notary
public;[13]
3. Whether the will must expressly
state that it is written in a language
or dialect known to the testator;
4. Whether the will of Abada has an
attestation clause, and if so,
whether the attestation clause
complies with the requirements of
the applicable laws;
5. Whether Caponong-Noble is
precluded from raising the issue of
whether the will of Abada is written
in a language known to Abada;
6. Whether evidence aliunde may be
resorted to in the probate of the will
of Abada.
The Ruling of the Court
The Court of Appeals did not err in
sustaining the RTC-Kabankalan in admitting to
probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932.
The laws in force at that time are the Civil
Code of 1889 or the Old Civil Code, and Act
No. 190 or the Code of Civil
[14]
Procedure which governed the execution of
wills before the enactment of the New Civil
Code.
The matter in dispute in the present case is
the attestation clause in the will of Abada.
Section 618 of the Code of Civil Procedure, as
amended by Act No. 2645,[15] governs the form
of the attestation clause of Abadas
will.[16] Section 618 of the Code of Civil
Procedure, as amended, provides:
SEC. 618. Requisites of will. No will, except as
provided in the preceding section,[17] shall be
valid to pass any estate, real or personal, nor
charge or affect the same, unless it be written
in the language or dialect known by the testator
and signed by him, or by the testators 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 each
other. 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, on the
left margin, and said pages shall be numbered
correlatively in letters placed on the upper part
of each sheet. 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 of each other.
Requisites of a Will under the Code of Civil
Procedure
Under Section 618 of the Code of Civil
Procedure, the requisites of a will are the
following:
(1) The will must be written in the
language or dialect known by the
testator;
(2) The will must be signed by the
testator, or by the testators name
written by some other person in
his presence, and by his express
direction;
(3) The will must be attested and
subscribed by three or more
credible witnesses in the presence
of the testator and of each other;
(4) The testator or the person
requested by him to write his
name and the instrumental
witnesses of the will must sign
each and every page of the will on
the left margin;
(5) The pages of the will must be
numbered correlatively in letters
placed on the upper part of each
sheet;
(6) 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 of the will, or
caused some other person to write
his name, under his express
direction, in the presence of three
witnesses, and the witnesses
witnessed and signed the will and
all pages of the will in the
presence of the testator and of
each other.
Caponong-Noble asserts that the will of
Abada does not indicate that it is written in a
language or dialect known to the testator.
Further, she maintains that the will is not
acknowledged before a notary public. She cites
in particular Articles 804 and 805 of the Old
Civil Code, thus:
Art. 804. Every will must be in writing and
executed in [a] language or dialect known to
the testator.
2
Page
Art. 806. Every will must be acknowledged
before a notary public by the testator and the
witnesses. xxx[18]
Caponong-Noble actually cited Articles 804
and 806 of the New Civil Code.[19] Article 804
of the Old Civil Code is about the rights and
obligations of administrators of the property of
an absentee, while Article 806 of the Old Civil
Code defines a legitime.
Articles 804 and 806 of the New Civil Code
are new provisions. Article 804 of the New Civil
Code is taken from Section 618 of the Code of
Civil Procedure.[20] Article 806 of the New Civil
Code is taken from Article 685 of the Old Civil
Code[21] which provides:
Art. 685. The notary and two of the witnesses
who authenticate the will must be acquainted
with the testator, or, should they not know him,
he shall be identified by two witnesses who are
acquainted with him and are known to the
notary and to the attesting witnesses. The
notary and the witnesses shall also endeavor
to assure themselves that the testator has, in
their judgment, the legal capacity required to
make a will.
Witnesses authenticating a will without the
attendance of a notary, in cases falling under
Articles 700 and 701, are also required to know
the testator.
However, the Code of Civil
Procedure[22] repealed Article 685 of the Old
Civil Code. Under the Code of Civil Procedure,
the intervention of a notary is not necessary in
the execution ofany will.[23] Therefore, Abadas
will does not require acknowledgment before a
notary public.
Caponong-Noble points out that nowhere
in the will can one discern that Abada knew the
Spanish language. She alleges that such
defect is fatal and must result in the
disallowance of the will. On this issue, the
Court of Appeals held that the matter was not
raised in the motion to dismiss, and that it is
now too late to raise the issue on appeal. We
agree with Caponong-Noble that the doctrine
of estoppel does not apply in probate
proceedings.[24] In addition, the language used
in the will is part of the requisites under Section
618 of the Code of Civil Procedure and the
Court deems it proper to pass upon this issue.
Nevertheless, Caponong-Nobles
contention must still fail. There is no statutory
requirement to state in the will itself that the
testator knew the language or dialect used in
the will.[25] This is a matter that a party may
establish by proof aliunde.[26] Caponong-Noble
further argues that Alipio, in his testimony, has
failed, among others, to show that Abada knew
or understood the contents of the will and the
Spanish language used in the will. However,
Alipio testified that Abada used to gather
Spanish-speaking people in their place. In
these gatherings, Abada and his companions
would talk in the Spanish language.[27] This
sufficiently proves that Abada speaks the
Spanish language.
The Attestation Clause of Abadas Will
A scrutiny of Abadas will shows that it has
an attestation clause. The attestation clause of
Abadas will reads:
Suscrito y declarado por el testador Alipio
Abada como su ultima voluntad y testamento
en presencia de nosotros, habiendo tambien el
testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las
hojas del mismo. Y en testimonio de ello, cada
uno de nosotros lo firmamos en presencia de
nosotros y del testador al pie de este
documento y en el margen izquierdo de todas
y cada una de las dos hojas de que esta
compuesto el mismo, las cuales estan
paginadas correlativamente con las letras UNO
y DOS en la parte superior de la carrilla.[28]
Caponong-Noble proceeds to point out
several defects in the attestation
clause. Caponong-Noble alleges that the
attestation clause fails to state the number of
pages on which the will is written.
The allegation has no merit. The phrase en
el margen izquierdo de todas y cada una de
las dos hojas de que esta compuesto el
mismo which means in the left margin of each
and every one of the two pages consisting of
the same shows that the will consists of two
pages. The pages are numbered correlatively
with the letters ONE and TWO as can be
gleaned from the phrase las cuales estan
paginadas correlativamente con las letras UNO
y DOS.
Caponong-Noble further alleges that the
attestation clause fails to state expressly that
the testator signed the will and its every page
in the presence of three witnesses. She then
faults the Court of Appeals for applying to the
present case the rule on substantial
compliance found in Article 809 of the New
Civil Code.[29]
The first sentence of the attestation clause
reads: Suscrito y declarado por el testador
Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros,
habiendo tambien el testador firmado en
nuestra presencia en el margen izquierdo de
todas y cada una de las hojas del mismo. The
English translation is: Subscribed and
professed by the testator Alipio Abada as his
last will and testament in our presence, the
testator having also signed it in our presence
on the left margin of each and every one of the
pages of the same. The
attestationclause clearly states that Abada
3
Page
signed the will and its every page in
the presence of the witnesses.
However, Caponong-Noble is correct in
saying that the attestation clause does not
indicate the number of witnesses. On this
point, the Court agrees with the appellate court
in applying the rule on substantial compliance
in determining the number of witnesses. While
the attestation clause does not state the
number of witnesses, a close inspection of the
will shows that three witnesses signed it.
This Court has applied the rule on
substantial compliance even before the
effectivity of the New Civil Code. In Dichoso
de Ticson v. De Gorostiza,[30] the Court
recognized that there are two divergent
tendencies in the law on wills, one being based
on strict construction and the other on liberal
construction. In Dichoso, the Court noted
that Abangan v. Abangan,[31] the basic case on
the liberal construction, is cited with approval in
later decisions of the Court.
In Adeva vda. De Leynez v.
Leynez,[32] the petitioner, arguing for liberal
construction of applicable laws, enumerated a
long line of cases to support her argument
while the respondent, contending that the rule
on strict construction should apply, also cited a
long series of cases to support his view. The
Court, after examining the cases invoked by
the parties, held:
x x x It is, of course, not possible to lay down a
general rule, rigid and inflexible, which would
be applicable to all cases. More than anything
else, the facts and circumstances of record are
to be considered in the application of any given
rule. If the surrounding circumstances point to
a regular execution of the will, and the
instrument appears to have been executed
substantially in accordance with the
requirements of the law, the inclination should,
in the absence of any suggestion of bad faith,
forgery or fraud, lean towards its admission to
probate, although the document may suffer
from some imperfection of language, or other
non-essential defect. x x x.
An attestation clause is made for the purpose
of preserving, in permanent form, a record of
the facts attending the execution of the will, so
that in case of failure of the memory of the
subscribing witnesses, or other casualty, they
may still be proved. (Thompson on Wills, 2d
ed., sec. 132.) A will, therefore, should not be
rejected where its attestation clause serves the
purpose of the law. x x x [33]
We rule to apply the liberal construction in
the probate of Abadas will. Abadas will clearly
shows four signatures: that of Abada and of
three other persons. It is reasonable to
conclude that there are three witnesses to the
will. The question on the number of the
witnesses is answered by an examination of
the will itself and without the need for
presentation of evidencealiunde. The Court
explained the extent and limits of the rule on
liberal construction, thus:
[T]he so-called liberal rule does not offer any
puzzle or difficulty, nor does it open the door to
serious consequences. The later decisions do
tell us when and where to stop; they draw the
dividing line with precision. They do not allow
evidence aliunde to fill a void in any part of
the document or supply missing details that
should appear in the will itself. They only
permit a probe into the will, an exploration
within its confines, to ascertain its meaning
or to determine the existence or absence of
the requisite formalities of law. This clear,
sharp limitation eliminates uncertainty and
ought to banish any fear of dire
results.[34] (Emphasis supplied)
The phrase en presencia de nosotros or in our
presence coupled with the signatures
appearing on the will itself and after the
attestation clause could only mean that: (1)
Abada subscribed to and professed before the
three witnesses that the document was his last
will, and (2) Abada signed the will and the left
margin of each page of the will in the presence
of these three witnesses.
Finally, Caponong-Noble alleges that the
attestation clause does not expressly state the
circumstances that the
witnesses witnessed and signed the will and
all its pages in the presence of the testator and
of each other. This Court has ruled:
Precision of language in the drafting of an
attestation clause is desirable. However, it is
not imperative that a parrot-like copy of the
words of the statute be made. It is sufficient if
from the language employed it can reasonably
be deduced that the attestation clause fulfills
what the law expects of it.[35]
The last part of the attestation clause
states en testimonio de ello, cada uno de
nosotros lo firmamos en presencia de nosotros
y del testador. In English, this means in its
witness, every one of us also signed in our
presence and of the testator. This clearly
shows that the attesting witnesses witnessed
the signing of the will of the testator, and that
each witness signed the will in the presence of
one another and of the testator.
WHEREFORE, we AFFIRM the Decision
of the Court of Appeals of 12 January 2001 in
CA-G.R. CV No. 47644.
SO ORDERED.
4
Page
G.R. No. L-1787 August 27, 1948
Testacy of Sixto Lopez. JOSE S.
LOPEZ, petitioner-appellee,
vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of
Batangas the appellant opposed
unsuccessfully the probate of what purports to
be the last will and testament (Exhibit A) of
Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost
six months after the document in question was
executed. In the court below, the present
appellant specified five grounds for his
opposition, to wit: (1) that the deceased never
executed the alleged will; (2) that his signature
appearing in said will was a forgery; (3) that at
the time of the execution of the will, he was
wanting in testamentary as well as mental
capacity due to advanced age; (4) that, if he
did ever execute said will, it was not executed
and attested as required by law, and one of the
alleged instrumental witnesses was
incapacitated to act as such; and it was
procured by duress, influence of fear and
threats and undue and improper pressure and
influence on the part of the beneficiaries
instituted therein, principally the testator's
sister, Clemencia Lopez, and the herein
proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud
or trick.
In this instance only one of these
objections is reiterated, formulated in these
words: "That the court a quo erred in holding
that the document Exhibit "A" was executed in
all particulars as required by law." To this
objection is added the alleged error of the court
"in allowing the petitioner to introduce evidence
that Exhibit "A" was written in a language
known to the decedent after petitioner rested
his case and over the vigorous objection of the
oppositor.
The will in question comprises two
pages, each of which is written on one side of
a separate sheet. The first sheet is not paged
either in letters or in Arabic numerals. This, the
appellant believes, is a fatal defect.
The purpose of the law in prescribing
the paging of wills is guard against fraud, and
to afford means of preventing the substitution
or of defecting the loss of any of its pages.
(Abangan vs. Abangan, 40 Phil., 476.) In the
present case, the omission to put a page
number on the first sheet, if that be necessary,
is supplied by other forms of identification more
trustworthy than the conventional numerical
words or characters. The unnumbered page is
clearly identified as the first page by the
internal sense of its contents considered in
relation to the contents of the second page. By
their meaning and coherence, the first and
second lines on the second page are
undeniably a continuation of the last sentence
of the testament, before the attestation clause,
which starts at the bottom of the preceding
page. Furthermore, the unnumbered page
contains the caption "TESTAMENTO," the
invocation of the Almighty, and a recital that
the testator was in full use of his testamentary
faculty, — all of which, in the logical order of
sequence, precede the direction for the
disposition of the marker's property. Again, as
page two contains only the two lines above
mentioned, the attestation clause, the mark of
the testator and the signatures of the
witnesses, the other sheet can not by any
possibility be taken for other than page
one. Abangan vs. Abangan,supra,
and Fernandez vs. Vergel de Dios, 46 Phil.,
922 are decisive of this issue.
Although not falling within the purview
and scope of the first assignment of error, the
matter of the credibility of the witnesses is
assailed under this heading. On the merits we
do not believe that the appellant's contention
deserves serious consideration. Such
contradictions in the testimony of the
instrumental witnesses as are set out in the
appellant's brief are incidents not all of which
every one of the witnesses can be supposed to
have perceived, or to recall in the same order
in which they occurred.
Everyday life and the result of
investigations made in the field of
experimental psychology show that the
contradictions of witnesses generally
occur in the details of a certain incident,
after a long series of questioning, and
far from being an evidence of falsehood
constitute a demonstration of good faith.
Inasmuch as not all those who witness
an incident are impressed in like
manner, it is but natural that in relating
their impressions they should not agree
in the minor details; hence, the
contradictions in their testimony.
(People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to
the instrument instead of signing his name.
The reason for this was that the testator was
suffering from "partial paralysis." While another
in testator's place might have directed
someone else to sign for him, as appellant
contends should have been done, there is
nothing curious or suspicious in the fact that
the testator chose the use of mark as the
5
means of authenticating his will. It was a matter
Page
of taste or preference. Both ways are good. A the probate of a will written in Tagalog was
statute requiring a will to be "signed" is ordered although it did not say that the testator
satisfied if the signature is made by the knew that idiom. In fact, there was not even
testator's mark. (De Gala vs. Gonzales and extraneous proof on the subject other than the
Ona, 53 Phil., 108; 28 R. C. L., 117.) fact that the testator resided in a Tagalog
With reference to the second region, from which the court said "a
assignment of error, we do not share the presumption arises that said Maria Tapia knew
opinion that the trial court communicated an the Tagalog dialect.
abuse of discretion in allowing the appellant to The order of the lower court ordering the
offer evidence to prove knowledge of Spanish probate of the last will and testament of Don
by the testator, the language in which the will is Sixto Lopez is affirmed, with costs.
drawn, after the petitioner had rested his case
and after the opponent had moved for
dismissal of the petition on the ground of
insufficiency of evidence. It is within the
discretion of the court whether or not to admit
further evidence after the party offering the
evidence has rested, and this discretion will not
be reviewed except where it has clearly been
abused. (64 C. J., 160.) More, it is within the
sound discretion of the court whether or not it
will allow the case to be reopened for the
further introduction of evidence after a motion
or request for a nonsuit, or a demurrer to the
evidence, and the case may be reopened after
the court has announced its intention as to its
ruling on the request, motion, or demurrer, or
has granted it or has denied the same, or after
the motion has been granted, if the order has
not been written, or entered upon the minutes
or signed. (64 C. J., 164.)
In this jurisdiction this rule has been
followed. After the parties have produced their
respective direct proofs, they are allowed to
offer rebutting evidence only, but, it has been
held, the court, for good reasons, in the
furtherance of justice, may permit them to offer
evidence upon their original case, and its ruling
will not be disturbed in the appellate court
where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U.
S. vs. Alviar, 36 Phil., 804.) So, generally,
additional evidence is allowed when it is newly
discovered, or where it has been omitted
through inadvertence or mistake, or where the
purpose of the evidence is to the evidence is to
correct evidence previously offered. (I Moran's
Comments on the Rules of Court, 2d ed., 545;
64 C. J., 160-163.) The omission to present
evidence on the testator's knowledge of
Spanish had not been deliberate. It was due to
a misapprehension or oversight.
Although alien to the second
assignment of error, the appellant impugns the
will for its silence on the testator's
understanding of the language used in the
testament. There is no statutory requirement
that such knowledge be expressly stated in the
will itself. It is a matter that may be established
by proof aliunde. This Court so impliedly ruled
6

in Gonzales vs. Laurel, 46 Phil., 781, in which

Page
G.R. No. L-13431 November 12, 1919
In re will of Ana Abangan.
GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-
appellants.
AVANCEÑA, J.:
On September 19, 1917, the Court of
First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this
decision the opponent's appealed.
Said document, duly probated as Ana
Abangan's will, consists of two sheets, the first
of which contains all of the disposition of the
testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the
direction of the testatrix) and by three
witnesses. The following sheet contains only
the attestation clause duly signed at the bottom
by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the
testatrix and the three witnesses, nor
numbered by letters; and these omissions,
according to appellants' contention, are defects
whereby the probate of the will should have
been denied. We are of the opinion that the will
was duly admitted to probate.
In requiring that each and every sheet of
the will should also be signed on the left
margin by the testator and three witnesses in
the presence of each other, Act No. 2645
(which is the one applicable in the case)
evidently has for its object (referring to the
body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the
testator's dispositions. But when these
dispositions are wholly written on only one
sheet signed at the bottom by the testator and
three witnesses (as the instant case), their
signatures on the left margin of said sheet
would be completely purposeless. In requiring
this signature on the margin, the statute took
into consideration, undoubtedly, the case of a
will written on several sheets and must have
referred to the sheets which the testator and
the witnesses do not have to sign at the
bottom. A different interpretation would assume
that the statute requires that this sheet, already
signed at the bottom, be signed twice. We
cannot attribute to the statute such an
intention. As these signatures must be written
by the testator and the witnesses in the
presence of each other, it appears that, if the
signatures at the bottom of the sheet
guaranties its authenticity, another signature
on its left margin would be unneccessary; and
if they do not guaranty, same signatures,
affixed on another part of same sheet, would
add nothing. We cannot assume that the
statute regards of such importance the place
where the testator and the witnesses must sign
on the sheet that it would consider that their
signatures written on the bottom do not
guaranty the authenticity of the sheet but, if
repeated on the margin, give sufficient security.
In requiring that each and every page of
a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is
likewise clear that the object of Act No. 2645 is
to know whether any sheet of the will has been
removed. But, when all the dispositive parts of
a will are written on one sheet only, the object
of the statute disappears because the removal
of this single sheet, although unnumbered,
cannot be hidden.
What has been said is also applicable to
the attestation clause. Wherefore, without
considering whether or not this clause is an
essential part of the will, we hold that in the
one accompanying the will in question, the
signatures of the testatrix and of the three
witnesses on the margin and the numbering of
the pages of the sheet are formalities not
required by the statute. Moreover, referring
specially to the signature of the testatrix, we
can add that same is not necessary in the
attestation clause because this, as its name
implies, appertains only to the witnesses and
not to the testator since the latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in
a will consisting of two sheets the first of which
contains all the testamentary dispositions and
is signed at the bottom by the testator and
three witnesses and the second contains only
the attestation clause and is signed also at the
bottom by the three witnesses, it is not
necessary that both sheets be further signed
on their margins by the testator and the
witnesses, or be paged.
The object of the solemnities
surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid
substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore
the laws on this subject should be interpreted
in such a way as to attain these primordal
ends. But, on the other hand, also one must
not lose sight of the fact that it is not the object
of the law to restrain and curtail the exercise of
the right to make a will. So when an
interpretation already given assures such ends,
any other interpretation whatsoever, that adds
nothing but demands more requisites entirely
unnecessary, useless and frustative of the
testator's last will, must be
disregarded. lawphil.net
As another ground for this appeal, it is
alleged the records do not show that the
testarix knew the dialect in which the will is
7
written. But the circumstance appearing in the
Page
will itself that same was executed in the city of
Cebu and in the dialect of this locality where
the testatrix was a neighbor is enough, in the
absence of any proof to the contrary, to
presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the
judgment appealed from is hereby affirmed
with costs against the appellants. So ordered.

8
Page
G.R. No. L-28946 January 16, 1929 language than the Igorrote dialect, with a
In re estate of Piraso, deceased. smattering of Ilocano; that is, he did not know
SIXTO ACOP, petitioner-appellant, the English language in which Exhibit A is
vs. written. So that even if such a presumption
SALMING PIRASO, ET AL., opponents- could have been raised in this case it would
appellees. have been wholly contradicted and destroyed.
We consider the other question raised in
ROMUALDEZ, J.: this appeal needless and immaterial to the
This appeal was taken from the adjudication of this case, it having been, as it
judgment of the Court of First Instance of was, proven, that the instrument in question
Benguet, denying the probate of the instrument could not be probated as the last will and
Exhibit A, as the last will and testament of the testament of the deceased Piraso, having been
deceased Piraso. written in the English language with which the
The proponent-appellant assigns the latter was unacquainted.
following as alleged errors of the lower court: Such a result based upon solidly
1. In holding that in order to be valid the established facts would be the same whether
will in question should have been drawn or not it be technically held that said will, in
up in the Ilocano dialect. order to be valid, must be written in the Ilocano
2. In not holding that the testator Piraso dialect; whether or not the Igorrote or Inibaloi
did not know the Ilocano dialect well dialect is a cultivated language and used as a
enough to understand a will drawn up in means of communication in writing, and
said dialect. whether or not the testator Piraso knew the
3. In refusing to admit the will in Ilocano dialect well enough to understand a will
question to probate. written in said dialect. The fact is, we repeat,
The fundamental errors assigned refer chiefly that it is quite certain that the instrument
to the part of the judgment which reads as Exhibit A was written in English which the
follows: supposed testator Piraso did not know, and
The evidence shows that Piraso knew this is sufficient to invalidate said will according
how to speak the Ilocano dialect, to the clear and positive provisions of the law,
although imperfectly, and could make and inevitably prevents its probate.
himself understood in that dialect, and The judgment appealed from is affirmed,
the court is of the opinion that his will with the costs of this instance against the
should have been written in that dialect. appellant.
Such statements were not unnecessary for the
decision of the case, once it has been proved So ordered.
without contradiction, that the said deceased
Piraso did not know English, in which language
the instrument Exhibit A, alleged to be his will,
is drawn. Section 628 of the Code of Civil
Procedure, strictly provides that:
"No will, except as provides in the
preceding section" (as to wills executed by a
Spaniard or a resident of the Philippine Islands,
before the present Code of Civil Procedure
went into effect), "shall be valid to pass any
estate, real or personal, nor charge or affect
the same, unless it be written in the language
or dialect known by the testator," etc.
(Emphasis supplied.) Nor can the presumption
in favor of the will established by this court in
Abangan vs. Abangan (40 Phil., 476), to the
effect that the testator is presumed to know the
dialect of the locality where he resides, unless
there is proof to the contrary, even he invoked
in support of the probate of said document
Exhibit A, as a will, because, in the instant
case, not only is it not proven that English is
the language of the City of Baguio where the
deceased Piraso lived and where Exhibit A
was drawn, but that the record contains
9

positive proof that said Piraso knew no other

Page
G.R. No. L-2862 April 21, 1952
TESTATE ESTATE OF MARIA ZUÑIGA VDA.
DE PANDO, deceased. JUAN
REYES, petitioner-administrator-appellant,
vs.
DOLORES ZUÑIGA VDA. DE
VIDAL, oppositor-appellee.
BAUTISTA ANGELO, J.:
This concerns the admission to probate
of a document claimed to be the last will and
testament of Maria Zuñiga Vda. de Pando who
died in the City of Manila on October 29, 1945.
On November 6, 1945, a petition for the
probate of said will was filed in the Court of
First Instance of Manila. On December 21,
1945, Dolores Zuñiga Vda. de Vidal, sister of
the deceased, filed an opposition based on
several grounds. And, after several days of
trial, at which both parties presented their
respective evidence, the court rendered its
decision disallowing the will on the ground that
the signatures of the deceased appearing
therein are not genuine, that it was not proven
that the deceased knew the Spanish language
in which it was written, and that even if the
signatures are genuine, the same reveal that
the deceased was not of sound mind when she
signed the will. From this decision petitioner
appealed to this Court.
While petitioner imputes nine errors to
the lower court, we believe, however, that for
purposes of this appeal of discussion of some
would be sufficient. Thus, the issues may be
boiled down as follows: 1) Whether or not the
signatures of the deceased appearing in the
will (Exhibit "C") are genuine; 2) whether or not
there is evidence to show that the testatrix
knew the language in which the will was
written; and 3) whether or not the testatrix was
of sound and disposing mind when she signed
the will.
1. To prove that the will was signed by
the testatrix in accordance with law, petitioner
presented as witnesses the three persons who
attested to the execution of the will. These
witnesses are: Cornelia Gonzales de Romero,
Quintin Ulpindo and Consuelo B. de Catindig.
The first used to provide the deceased with ice
every day, and in one of those occasions she
went to her house to bring ice, she requested
to act witness to the execution of the will. The
second was a laborer whose job was is to fix
bed made of rattan, and in one of those days
he went to the house of the deceased to work,
he was asked also to witness the signing of the
will. And the third was a neighbor of the
deceased for many years who was also
requested to act as an instrumental witness.
These witnesses testified in their own simple
and natural way that the deceased signed the
will seated on her bed but over a small table
placed near the bed in their presence, and
after she had signed it in the places where her
signatures appear, they in turn signed it in the
presence and in the presence of each other.
This is the substance of what they have
testified and from an examination of their
testimony to the court entertains no doubt that
they had told the truth. There is nothing in their
testimony which may in any way reflect against
their credibility nor has the oppositor proven
fact or circumstance which may give rise to the
suspicion that they testified out of personal
interest or pecuniary consideration. They have
impressed the court as simple persons who
had intervened in the execution of the will out
merely of deference to the testatrix whom they
had served for sometime and had known to be
a good and respectable woman.
What evidence has the oppositor
presented to contradict the testimony of these
instrumental witnesses? only one expert
witness, Jose G. Villanueva, who made a
comparative analysis of the signatures
appearing in the will in relation to some
genuine signatures of the deceased, and in
fact testified on the analysis and study he has
made of said signatures and submitted a
memorandum on the study and comparison he
has made. And in his testimony as well as in
his memorandum, this witness has reached the
conclusion that the hand that wrote the
signatures of the deceased appearing in the
will is not the same hand that wrote the
genuine signatures he had examined and
which he used as basis of his analytical study,
thereby concluding that said signatures are not
genuine. The lower court gave full faith and
credit to the opinion of this expert witness, and
decreed as a result that the will cannot be
admitted to probate.
There are, however, certain important
facts and circumstances which make us differ
from this opinion of the lower court. In the first
place, we find that the opinion of this expert
witness has been rebutted by another expert
witness Jose C. Espinosa, whose opinion, to
our mind, deserves more weight and credence.
And our reason for reaching this conclusion is
the fact that the standards of the comparison
used by Espinosa are more reliable than those
used by Villanueva in the comparison are two
signatures appearing in two documents
executed on November 10, 1942, one
signature in an identification card affixed in
April 1940, a half signature appearing in a
letter written on October 8, 1943, one signature
appearing in a letter written on July 16, 1945,
and one signature appearing in a letter written
10
on January, 1945, whereas the disputed
signatures appearing in the will were affixed on
Page
October 29, 1945. On the other hand, the
standards used by Espinosa in making his
comparative study bear dates much closer to
that of the disputed signatures. Thus, he
examined four genuine signatures that were
affixed on October 16, 1945, other four
signatures that were affixed in October 1945,
one on January 2, 1945, on January 24, 1945,
and one on September 24 1945, He also
examined one affixed on March 12, 1941, only
for emphasis. The closeness or proximity of the
time in which the standards used had been
written to that of the suspected signature or
document is very important to bring about an
accurate analysis and conclusion. the selection
of the proper standards of comparison is of
paramount importance especially if we
consider the age and the state of the health of
the author of the questioned signatures. a
signature affixed in 1941 may involved
characteristics different from those borne by a
signature affixed in 1945. And this is because
the passing of time and the increase in age
may have a decisive influence in the writing
characteristics of a person. It for this reasons
that the authorities of the opinion that in order
to bring about an accurate comparison and
analysis, the standard of comparison must be
as close as possible in point of time to the
suspected signature. Such was not followed in
the study made by Villanueva. But such was
observed in the study made by Espinosa. He
followed the standard practice in handwriting
analysis. It is for this reason that we hold that
Espinosa's opinion deserves more weight and
consideration.
The standards should, if possible,
have been made by the same time as
the suspected document. It is preferable
that the standards embraced the time of
the origin of the document, so that one
part comes from the time after the
origin. (Page 423 "Modern Criminal
Investigation" by Soderman and O'
Connell, 1936, Funk and Wagnalls
Company, New York and London.)
If possible less than five or six
signatures should always be examined
and preferably double that number."
(Page 139, Forensic Chemistry and
Scientific Criminal Investigation by
Lucas, 1935, Edward Arnold & Co.,
London.)
2. Another ground on which the lower court
base the disallowance of the will is the failure
of the petitioner to prove that the testratrix
knew and spoke the language in which the will
in question appears to have been written.
According to the lower court, the law requires
that the will should be written in the dialect or
language known to the testator and this fact
having been proven, the probate of the will
must fail. And the wall was disallowed.
There is indeed nothing in the testimony
of the witnesses presented by the petitioner
which would indicate that the testatrix knew
and spoke the Spanish language used in the
preparation of the will in question. But, in our
opinion, this failure alone does not in itself
suffice to conclude that this important
requirement of the law has not been complied
with, it appearing that there is enough evidence
on record which supplies this technical
omission. In the first place, we have the
undisputed fact that the deceased was
a mestiza española, was married to a
Spaniard, Recaredo Pando, and made several
trips to Spain. In the second place, we have
the very letters submitted as evidence by the
oppositor written in Spanish by the deceased
possessed the Spanish language, oppositor
cannot now be allowed to allege the contrary.
These facts give rise to the presumption that
the testatrix knew the language in which the
testament has been written, which presumption
should stand unless the contrary is proven
(Abangan vs. Abangan, 40 Phil., 476;
Gonzales vs. Laurel, 46 Phil. 750). And this
presumption has not been overcome. And
finally, we have the very attestation clause of
the will which states that the testatrix knew and
possessed the Spanish language. It is true that
this matter is not required to be stated in the
attestation clause, but its inclusion can only
mean that the instrumental witnesses wanted
to make it of record that the deceased knew
the language in which the will was written.
There is, therefore, no valid reason why the will
should be avoided on this ground.
3. The remaining ground which the
lower court has considered in disallowing the
will is the fact that the deceased was not of
sound and disposing mind when she signed
the will, and it reached this conclusion, not
because of any direct evidence on the matter,
but simply because the deceased signed the
will in a somewhat varied form. On this point
the lower court said:
El Juzgado es de opinion que
aunque se admita que las firmas arriba
indicadas feuran de Maria Zuñiga Vda.
de Pando, las mismas revelan que ella
no estabe en el pleno de sus facultades
mentales cuando la hicieron firmar el
documento, Exhibit C, pues el hecho de
que en una sola ocasion la repetida
Maria Zuñiga Vda. de Pando firmo dos
veces, sin escribir su verdadero
nombre, demuestra que ella no se daba
cuenta de sus actos por no hallarse
11
mentalmente sana. Si esto es asi, no se
debe legalizar como testamento y ultima
Page
 voluntad de la finada Maria Zuñiga Vda. painstaking and delicate retouching of
de Pando el documento, Exhibit C, the forger, often indicates genuineness.
porque el Articulo 614 de la Ley 190 y el (Page 365, Questioned Documents by
Articulo 12, Reglamentos de los Osborne, 2nd Edition, 1927.)
Tribunales, disponen que solamente
pueden otorgar testamento las personas We are, therefore, of the opinion that the
que al tiempo de su otorgamiento lower court erred in disallowing the will Exhibit
estaban en el pleno goce de sus C.
facultades mentales.
Wherefore, the decision appealed from is
The above conclusion is contrary to hereby reversed. The Court admits the will
what the instrumental witnesses have said on Exhibit C to probate, and remands these case
this point. Cornelio Gonzales de Romero to the lower court for further proceedings, with
stated that she spoke to the deceased before costs against the appellee.
the signing of the will, and judging from the
way she spoke she was of the impression that
the deceased was of sound mind at the time.
To the same effect is the testimony of
Consuelo B. de Catindig. She said that her
impression when the deceased signed the will
was that she could still talk and read, only that
she was weak. In fact she read the will before
signing it. These statements had not been
contradicted. They give an idea of the mental
had not contradicted. They give an idea of
mental condition of the deceased in the will
differ from each other in certain respects, this
is only due to her age and state of health rather
than to a defective mental condition. They do
not reveal a condition of forgery or lack of
genuineness. These differences or
irregularities are common in the writings of old
people and, far from showing lack of
genuineness, are indicative of the age,
sickness, or weak condition of the writer. A
comparison of the three disputed signatures in
the will readily give this impression.
Abbreviated, distorted and
illegible, forms, which are sufficiently
free and rapid, often actually indicate
genuineness rather than forgery even
though they are very unusual and not
exactly like those in the standard writing.
Those who write of difficulty or
hesitation through some physical
infirmity may sometimes produced
broken and unfinished signatures and
these results, which in themselves are
distinctly divergent as compared with
signatures produced under conditions of
strength and health, may forcefully
indicate genuineness . Under conditions
of weakness due to diseased or age,
parts of a genuine signature may be
clumsily written over a second time not
at just the same place and in a way
when clearly shows that the writer either
could not see or was so week and
inattentive as not to care what the result
12

might be. This careless, perfectly

evident repetition (figure 184), unlike the
Page
G.R. No. L-13781 January 30, 1960
Testate Estate of JOSE J. JAVELLANA,
Deceased. CRISTETA JIMENEA VDA. DE
JAVELLANA, and BENJAMIN
JAVELLANA, petitioners-appellees,
vs.
JOSE JAVELLANA y AZAOLA and JOSE
JAVELLANA, JR., oppositors-appellants.
BARRERA, J.:
On June 29, 1957, a petition to probate
the alleged last will and testament of Jose J.
Javellana, who died on May 24 of the same
year, was presented in the Court of First
Instance of Rizal by Crsiteta Jimenea Vda. de
Javellana and Benjamin Javellana, widow and
brother respectively of the deceased, alleging
that the aforesaid Jose J. Javellana, at the time
of his death, a resident of Ssan Juan Rizal, left
porperties with an approximate value of
P400,000.00; that he also left a will which was
delivered to the clerk of court pursuant to the
Rules of Court; that Oscar Ledesma, therein
named executor, had agreed to act as such;
that the decedent's next of kin were; the wido.,
Criteta J. Vda. de Javellana, his children —
Erlinda Javellana, Jose Javellana y Azaola,
and Jose Javellana, Jr. (Pepito), his sister
Juanito J. de Ledesma, and brother Benjamin
Javellana, whose respective addresses wre
given in the petition.
To this petition, Jose Javellana y Azaola
and Jose Javellana, Jr. (Pepito) filed separate
opposiytions, both claiming that the alleged will
of Jose J. Javellana deposited by peittioners
with the clerk of court was null and void, the
same not having been executed "in
accordance with the formalities required by
law" and that "the legal requirements
necessary for its validit" had not been complied
with.
At the hearing, petitioners introduced as
evidence in support of the petition, a copy of
the will; certification of the date and cause of
death of the testator; proof of publication of the
petition, once a week for 3 consecutive weeks,
in a newspaper of general circulation, and thre
testimonies of Jose G. Guevarra, Eloisa
Villanueva and Jose Yulo, Jr., the 3
instrumental witnesses to the will, whi, in
sustancer, testified that sometime in April,
1956, they were asked to witness the
execution of the will of the late Jose. J.
Javellana; that on the said occasion, Jose J.
Javellana signed the 4 pages of the will in their
presence, and they, in turn, also signed each
and evey page thereof in the presence of the
testator and of one another; and that these
acts wetre acknowledge before notary public
Fernando Grey, Jr. on the same occasion.
For their part, the oppositor limited their
evidence to the presentation of two letters in
the Visayan dialect allegedly written by the
deceased, the signatures appearing thereon
being identified by Jose Javellana, Jr. (Pepito)
and Manuel Azaola, as those of the deceased,
for the sole purpose of comparing said
signatures woth those appearing in the will.
On December 10, 1957, the court a quo
issued an order allowing the probate of the will
and directing the issuance of letters
testamentary to Oscar Ledesma as executor
thereoif, upon the latter's filing a bond in the
sum of P10,000.00. From this order, oppositors
appealed to this Court charging the lower court
of committing error in allowing oprobate of the
will, Exhibit C, on 2 grounds: (1) that the 3
sttesting witnesses failed to clearly and
convincingly estabish the due execution of the
will; and (2) that petitioners failed to prove that
the will was written in a language known to the
testator.
The first basis of oppositor's appeal has
no merit. It is true that witnesses, particularly
Miss Eloisa Villanueva, apparently found
difficulty recalling who arrived first at the
appointed place, or the order of the witnesses'
signing the will, or failed to mention by name
the persons present at the time of the
witnesses was signing the document. These
details, however, are minor and significant and
do not enervate their positive testimony that at
the execution of the will the testator, the 3
witnesses, the notary public and Atty. Vicente
Hilado were all together in the private office of
the latter; that Jose Guevarra, Eloisa
Villanueva and Jose Yulo, Jr., the instrumental
witnesses, were unanimous in declaring that
they actually saw the testator sign the will as
well as each and every page thereof, and they,
in turen, affixed their signatures to all of its 4
pages. For the purpose of determining tjhe due
execution of a will, it is not necessary that the
instrumental witnesses should give an accurate
and detailed account of the proceeding, such
as recalling the order of the signing of the
document by the dsaid wirtneese. It is sufficient
that they have seen or at least were so situated
at the moment that they could have seen each
other sign, had they wnated to do so.1 In fact,
in the instant case, at least two witnesses, Yulo
and Guevarra, both testified hat the testator
and the 3 witnesses signed in the presence of
each and every one of them.
With respect to the second ground,
there is some merit in appellant's contention
that the language requirement of the law on
wills has not been satisfactorily complied with
in this case. Admittedly, there is want of
13
expression in the body of the will itself or in its
attestation clause that the testator knew
Page
Spanish, the language in which it is written. It is presumption, that the testator might, in fact,
true that there is no statutory provision have known the Spanish language. In
requiring this and that proof thereof may be oppositor's own Exhibit 3 (a letter admittedly
established by evidence aliunde.2 But here, written by the testator) appear the salutation
there is absolutely no such evidence presented "Querido Primo" and the complimentary ending
by the petitioners-appellees. Not even the "Su primo" which are Spanish terms. Having
petition for probate contains any allegation to found that al the formal requisites for the
this effect. No reference to it whatsoever is validity of the will have been satisfactorily
made in the appealed order. establishment, except the language
In some cases, it is true, this lack of requirement, we deem it in the interest of
evidence was considered cured by justice to afford the parties a opportunity to
presumptioin of knowledge of the language or present evidence, if they so desire, on this
dialect used in the will, as where the will is controverted issue.
executed in a certain province or locality, in the Wherefore, let the records of this case
dialect currently used in such provimnce or be remanded to the court of origin for furhter
locality in which the testator is a native or proceedings as above indicated, without costs.
resident, the presumption arises that the
testator knew the dialect so used, in the It is so ordered.
absence of evidence to the contrary; 3 or
where the will is in Spanish, the fact that the
testratrix was a "mestiza española", was
married to a Spaniard, made several trips to
Spain, and some of her letters in her own
handwriting submitted as evidence by the
oppositor, are in Spanish, give rise to the
presumption that she knew the language in
which the will was written, in the absence of
proof to the contrary.4
In the case before us, no such or similar
circumstances exist. On the contrary, there is
evidence that the testator is a Visayan
although residing in San Juan, Rizal at the time
of his death. The will was executed in the City
of Manila. Undoubtedly, it cannot be said, and
there is no evidence, that Spaniards is the
language currently used either in San Juan,
Rizal, or Manila. It follows, therefore, that no
presumption can rise that the testator knew the
Spanish Language.
But petitioner-appellees insist in their
brief that the burden is on the oppositors to
allege and prove that the testator did not know
the Spanish language in the face of the legal
presumption that "the law has been obeyed",
"that a will executed in the Philippines must be
presumed to have been executed in conformity
with the laws of the Philippines".5 and "that
things have happened in accordance with the
ordinary course of nature and the ordinary
habits of life", concluding that it woiuld certainly
be contrary to the ordinary habits of life for a
person to execute his will in a language
unknown to him. This, we believe, is, to use a
colloquial term, being the question. If the
argument of counsel is correct, then every
unopposed will may be probated upon its mere
presentation in court, without need of
producing evidence regarding its execution.
Counsel's statement is its own refutation.
14

We find, in the record stone indicia,

although insufficient to give rise to the
Page
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 aforged 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.
15
Upon motion of Marina, Judge Honrado
issued another order dated April 11, 1975,
Page
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
16
Marina Paje, that the beneficiary's real name is
Page
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 re lmpeachment 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
17
will was read to the testatrix "and translated
into Filipino language". (p. 16, Record of
Page
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.
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