FIRST DIVISION

MANUEL L. LEE, A.C. No. 5281

Complainant,
Present:
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

ATTY. REGINO B. TAMBAGO,

Respondent. Promulgated:
February 12, 2008
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION
CORONA, J.:

In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee

charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and
the ethics of the legal profession for notarizing a spurious last will and testament.
 In his complaint, complainant averred that his father, the decedent Vicente
Lee, Sr., never executed the contested will. Furthermore, the spurious will
contained the forged signatures of Cayetano Noynay and Loreto Grajo, the
purported witnesses to its execution.

In the said will, the decedent supposedly bequeathed his entire estate to his
wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and
Elena Lee, half-siblings of complainant.

The will was purportedly executed and acknowledged before respondent on

June 30, 1965.[1] Complainant, however, pointed out that the residence
certificate[2] of the testator noted in the acknowledgment of the will was dated
January 5, 1962.[3] Furthermore, the signature of the testator was not the same as
his signature as donor in a deed of donation[4] (containing his purported genuine
signature). Complainant averred that the signatures of his deceased father in the
will and in the deed of donation were in any way (sic) entirely and diametrically
opposed from (sic) one another in all angle[s].[5]

Complainant also questioned the absence of notation of the residence

certificates of the purported witnesses Noynay and Grajo. He alleged that their
signatures had likewise been forged and merely copied from their respective voters
affidavits.

Complainant further asserted that no copy of such purported will was on file
in the archives division of the Records Management and Archives Office of the
National Commission for Culture and the Arts (NCCA). In this connection, the
certification of the chief of the archives division dated September 19, 1999 stated:

Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by
BARTOLOME RAMIREZ on June 30, 1965 and is available in thisOffice[s] files.[6]

Respondent in his comment dated July 6, 2001 claimed that the complaint
against him contained false allegations: (1) that complainant was a son of the
decedent Vicente Lee, Sr. and (2) that the will in question was fake and spurious.
He alleged that complainant was not a legitimate son of Vicente Lee, Sr. and the
last will and testament was validly executed and actually notarized by respondent
per affidavit[7] of Gloria Nebato, common-law wife of Vicente Lee, Sr. and
corroborated by the joint affidavit[8] of the children of Vicente Lee, Sr., namely
Elena N. Lee and Vicente N. Lee, Jr. xxx.[9]

Respondent further stated that the complaint was filed simply to harass him
because the criminal case filed by complainant against him in the Office of the
Ombudsman did not prosper.

Respondent did not dispute complainants contention that no copy of the will
was on file in the archives division of the NCCA. He claimed that no copy of the
contested will could be found there because none was filed.
 Lastly, respondent pointed out that complainant had no valid cause of action
against him as he (complainant) did not first file an action for the declaration of
nullity of the will and demand his share in the inheritance.

In a resolution dated October 17, 2001, the Court referred the case to the
Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation.[10]

In his report, the investigating commissioner found respondent guilty of violation

of pertinent provisions of the old Notarial Law as found in the Revised
Administrative Code. The violation constituted an infringement of legal ethics,
particularly Canon 1[11] and Rule 1.01[12] of the Code of Professional Responsibility
(CPR).[13] Thus, the investigating commissioner of the IBP Commission on Bar
Discipline recommended the suspension of respondent for a period of three
months.

The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May
26, 2006, resolved:

[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with

modification, the Report and Recommendation of the Investigating Commissioner of the
above-entitled case, herein made part of this Resolution as Annex A; and, finding the
recommendation fully supported by the evidence on record and the applicable laws and
rules, and considering Respondents failure to comply with the laws in the discharge of his
function as a notary public, Atty. Regino B. Tambago is hereby suspended from the
practice of law for one year and Respondents notarial commission is Revoked and
Disqualified from reappointment as Notary Public for two (2) years.[14]
 We affirm with modification.

A will is an act whereby a person is permitted, with the formalities prescribed

by law, to control to a certain degree the disposition of his estate, to take effect
after his death.[15] A will may either be notarial or holographic.

The law provides for certain formalities that must be followed in the
execution of wills. The object of solemnities surrounding the execution of wills is to
close the door on bad faith and fraud, to avoid substitution of wills and testaments
and to guarantee their truth and authenticity.[16]

A notarial will, as the contested will in this case, is required by law to be

subscribed at the end thereof by the testator himself. In addition, it should be
attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another.[17]

The will in question was attested by only two witnesses, Noynay and Grajo.
On this circumstance alone, the will must be considered void.[18] This is in
consonance with the rule that acts executed against the provisions of mandatory
or prohibitory laws shall be void, except when the law itself authorizes their
validity.
 The Civil Code likewise requires that a will must be acknowledged before a
notary public by the testator and the witnesses.[19] The importance of this
requirement is highlighted by the fact that it was segregated from the other
requirements under Article 805 and embodied in a distinct and separate
provision.[20]

An acknowledgment is the act of one who has executed a deed in going

before some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signatory actually declares to the
notary public that the same is his or her own free act and deed.[21] The
acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the
testators wishes long after his demise and (2) to assure that his estate is
administered in the manner that he intends it to be done.

A cursory examination of the acknowledgment of the will in question shows

that this particular requirement was neither strictly nor substantially complied
with. For one, there was the conspicuous absence of a notation of the residence
certificates of the notarial witnesses Noynay and Grajo in the acknowledgment.
Similarly, the notation of the testators old residence certificate in the same
acknowledgment was a clear breach of the law. These omissions by respondent
invalidated the will.

As the acknowledging officer of the contested will, respondent was required

to faithfully observe the formalities of a will and those of notarization. As we held
in Santiago v. Rafanan:[22]
 The Notarial Law is explicit on the obligations and duties of notaries public. They
are required to certify that the party to every document acknowledged before him had
presented the proper residence certificate (or exemption from the residence tax); and to
enter its number, place of issue and date as part of such certification.

These formalities are mandatory and cannot be disregarded, considering the

degree of importance and evidentiary weight attached to notarized
documents.[23] A notary public, especially a lawyer,[24] is bound to strictly observe
these elementary requirements.

The Notarial Law then in force required the exhibition of the residence
certificate upon notarization of a document or instrument:

Section 251. Requirement as to notation of payment of [cedula] residence tax.

Every contract, deed, or other document acknowledged before a notary public shall
have certified thereon that the parties thereto have presented their proper [cedula]
residence certificate or are exempt from the [cedula] residence tax, and there shall
be entered by the notary public as a part of such certificate the number, place of
issue, and date of each [cedula] residence certificate as aforesaid.[25]

The importance of such act was further reiterated by Section 6 of the

Residence Tax Act[26] which stated:

When a person liable to the taxes prescribed in this Act acknowledges any
document before a notary public xxx it shall be the duty of such person xxx with
whom such transaction is had or business done, to require the exhibition of the
residence certificate showing payment of the residence taxes by such person xxx.
 In the issuance of a residence certificate, the law seeks to establish the true
and correct identity of the person to whom it is issued, as well as the payment of
residence taxes for the current year. By having allowed decedent to exhibit an
expired residence certificate, respondent failed to comply with the requirements
of both the old Notarial Law and the Residence Tax Act. As much could be said of
his failure to demand the exhibition of the residence certificates of Noynay and
Grajo.

On the issue of whether respondent was under the legal obligation to furnish
a copy of the notarized will to the archives division, Article 806 provides:

Art. 806. Every will must be acknowledged before a notary public by the testator
and the witness. The notary public shall not be required to retain a copy of the will, or
file another with the office of the Clerk of Court. (emphasis supplied)

Respondents failure, inadvertent or not, to file in the archives division a copy of the
notarized will was therefore not a cause for disciplinary action.

Nevertheless, respondent should be faulted for having failed to make the

necessary entries pertaining to the will in his notarial register. The old Notarial Law
required the entry of the following matters in the notarial register, in chronological
order:

1. nature of each instrument executed, sworn to, or acknowledged before him;

2. person executing, swearing to, or acknowledging the instrument;

 3. witnesses, if any, to the signature;

4. date of execution, oath, or acknowledgment of the instrument;

5. fees collected by him for his services as notary;

6. give each entry a consecutive number; and

7. if the instrument is a contract, a brief description of the substance of the

instrument.[27]

In an effort to prove that he had complied with the abovementioned rule,

respondent contended that he had crossed out a prior entry and entered instead
the will of the decedent. As proof, he presented a photocopy of his notarial register.
To reinforce his claim, he presented a photocopy of a certification[28] stating that
the archives division had no copy of the affidavit of Bartolome Ramirez.

A photocopy is a mere secondary evidence. It is not admissible unless it is

shown that the original is unavailable. The proponent must first prove the existence
and cause of the unavailability of the original,[29] otherwise, the evidence presented
will not be admitted. Thus, the photocopy of respondents notarial register was not
admissible as evidence of the entry of the execution of the will because it failed to
comply with the requirements for the admissibility of secondary evidence.

In the same vein, respondents attempt to controvert the certification dated

September 21, 1999[30] must fail. Not only did he present a mere photocopy of the
certification dated March 15, 2000;[31] its contents did not squarely prove the fact
of entry of the contested will in his notarial register.
 Notaries public must observe with utmost care[32] and utmost fidelity the
basic requirements in the performance of their duties, otherwise, the confidence
of the public in the integrity of notarized deeds will be undermined.[33]

Defects in the observance of the solemnities prescribed by law render the

entire will invalid. This carelessness cannot be taken lightly in view of the
importance and delicate nature of a will, considering that the testator and the
witnesses, as in this case, are no longer alive to identify the instrument and to
confirm its contents.[34] Accordingly, respondent must be held accountable for his
acts. The validity of the will was seriously compromised as a consequence of his
breach of duty.[35]

In this connection, Section 249 of the old Notarial Law provided:

Grounds for revocation of commission. The following derelictions of duty on the part of a
notary public shall, in the discretion of the proper judge of first instance, be sufficient
ground for the revocation of his commission:

xxx xxx xxx

(b) The failure of the notary to make the proper entry or entries in his notarial register
touching his notarial acts in the manner required by law.

xxx xxx xxx

(f) The failure of the notary to make the proper notation regarding cedula certificates.[36]
 These gross violations of the law also made respondent liable for violation of
his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of
the Rules of Court[37] and Canon 1[38]and Rule 1.01[39] of the CPR.

The first and foremost duty of a lawyer is to maintain allegiance to the

Republic of the Philippines, uphold the Constitution and obey the laws of the
land.[40] For a lawyer is the servant of the law and belongs to a profession to which
society has entrusted the administration of law and the dispensation of justice.[41]

While the duty to uphold the Constitution and obey the law is an obligation
imposed on every citizen, a lawyer assumes responsibilities well beyond the basic
requirements of good citizenship. As a servant of the law, a lawyer should
moreover make himself an example for others to emulate.[42] Being a lawyer, he is
supposed to be a model in the community in so far as respect for the law is
concerned.[43]

The practice of law is a privilege burdened with conditions.[44] A breach of

these conditions justifies disciplinary action against the erring lawyer. A disciplinary
sanction is imposed on a lawyer upon a finding or acknowledgment that he has
engaged in professional misconduct.[45] These sanctions meted out to errant
lawyers include disbarment, suspension and reprimand.

Disbarment is the most severe form of disciplinary sanction.[46] We have held

in a number of cases that the power to disbar must be exercised with great
caution[47] and should not be decreed if any punishment less severe such as
reprimand, suspension, or fine will accomplish the end desired.[48] The rule then is
that disbarment is meted out only in clear cases of misconduct that seriously affect
the standing and character of the lawyer as an officer of the court.[49]

Respondent, as notary public, evidently failed in the performance of the

elementary duties of his office. Contrary to his claims that he exercised his duties
as Notary Public with due care and with due regard to the provision of existing law
and had complied with the elementary formalities in the performance of his duties
xxx, we find that he acted very irresponsibly in notarizing the will in question. Such
recklessness warrants the less severe punishment of suspension from the practice
of law. It is, as well, a sufficient basis for the revocation of his commission[50] and
his perpetual disqualification to be commissioned as a notary public.[51]

WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of

professional misconduct. He violated (1) the Lawyers Oath; (2) Rule 138 of the Rules
of Court; (3) Canon 1 and Rule 1.01 of the Code of Professional Responsibility; (4)
Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.

Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for
one year and his notarial commission REVOKED. Because he has not lived up to the
trustworthiness expected of him as a notary public and as an officer of the court,
he is PERPETUALLYDISQUALIFIED from reappointment as a notary public.
 Let copies of this Resolution be furnished to all the courts of the land, the
Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as
made part of the personal records of respondent.

SO ORDERED.

RENATO C. CORONA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
Chairperson

ANGELINA SANDOVAL-GUTIERREZADOLFO S. AZCUNA

Associate Justice Associate Justice
 TERESITA J. LEONARDO-DE CASTRO
Associate Justice

[1]
Rollo, p. 3.
[2]
Now known as Community Tax Certificate.
[3]
Page two, Last Will and Testament of Vicente Lee, Sr., rollo, p. 3.
[4]
Id., p. 10.
[5]
Id., p. 1.
[6]
Rollo, p. 9.
[7]
Dated July 11, 2001. Id., p. 94.
[8]
Dated July 11, 2001. Id., p. 95.
[9]
Id., p. 90.
[10]
Rollo, p. 107.
[11]
CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY THE LAWS OF THE LAND AND
PROMOTE RESPECT FOR LAW AND FOR LEGAL PROCESSES.
[12]
Rule 1.01 A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
[13]
Annex A, Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27 2006. Rollo, p.
13.
[14]
Notice of Resolution, IBP Board of Governors. (Emphasis in the original)
[15]
CIVIL CODE, Art. 783.
[16]
Jurado, Desiderio P., COMMENTS AND JURISPRUDENCE ON SUCCESSION, 8th ed. (1991), Rex Bookstore,
Inc., p. 52. In re: Will of Tan Diuco, 45 Phil. 807 (1924); Unson v. Abella, 43 Phil. 494 (1922); Aldaba v.
Roque, 43 Phil. 379 (1922); Avera v. Garcia, 42 Phil. 145 (1921); Abangan v. Abangan, 40 Phil. 476 (1919).
[17]
CIVIL CODE, Art. 804.
[18]
CIVIL CODE, Art. 5.
[19]
CIVIL CODE, Art. 806.
[20]
Azuela v. Court of Appeals, G.R. No. 122880, 12 April 2006, 487 SCRA 142.
[21]
Id.
[22]
A.C. No. 6252, 5 October 2004, 440 SCRA 98.
[23]
Santiago v. Rafanan, id., at 99.
[24]
Under the old Notarial Law, non-lawyers may be commissioned as notaries public subject to certain conditions.
Under the 2004 Rules on Notarial Practice (A.M. No. 02-8-13-SC, effective August 1, 2004), however, only
lawyers may be granted a notarial commission.
[25]
REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 251.
[26]
Commonwealth Act No. 465.
[27]
REVISED ADMINISTRATIVE CODE, Book I, Title IV, Chapter 11, Sec. 246.
[28]
Dated March 15, 2000. Rollo, p. 105.
[29]
When the original document is unavailable.When the original document has been lost or destroyed, or cannot be
produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated. RULES OF COURT, Rule 130, Sec. 5.
[30]
Supra note 6.
[31]
Rollo, p. 105.
[32]
Bon v. Ziga, A.C. No. 5436, 27 May 2004, 429 SCRA 185.
[33]
Zaballero v. Montalvan, A.C. No. 4370, 25 May 2004, 429 SCRA 78.
[34]
Annex A, Report and Recommendation by Commissioner Elpidio G. Soriano III, dated February 27, 2006, rollo, p.
12
[35]
Id., p. 13.
[36]
REVISED ADMINISTRATIVE CODE, Book 1, Title IV, Chapter 11.
[37]
Duties of attorneys. It is the duty of an attorney:
(a) To maintain allegiance to the Republic of the Philippines and to support the Constitution and
obey the laws of the Philippines;
(b) Xxx, RULES OF COURT, Rule 138, Sec. 20, par. (a).
[38]
CANON 1, supra note 11.
[39]
Rule 1.01, supra note 12.
[40]
Montecillo v. Gica, 158 Phil. 443 (1974). Zaldivar v. Gonzales, G.R. No. L-79690-707, 7 October 1988, 166 SCRA
316.
[41]
Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc., p. 69. Comments
of IBP Committee that drafted the Code of Professional Responsibility, pp. 1-2 (1980).
[42]
Id.
[43]
Id.
[44]
Agpalo, Ruben E., LEGAL AND JUDICIAL ETHICS, 7th Edition (2002), Rex Bookstore, Inc., p. 465.
[45]
Guidelines for Imposing Lawyer Sanctions, Integrated Bar of the Philippines Commission on Bar Discipline.
[46]
San Jose Homeowners Association, Inc. v. Romanillos, A.C. No. 5580, 15 June 2005, 460 SCRA 105.
[47]
Santiago v Rafanan, supra note 22 at 101.Alitagtag v. Garcia, A.C. No. 4738, 10 June 2003, 403 SCRA 335.
[48]
Suzuki v. Tiamson, A.C. No. 6542, 30 September 2005, 471 SCRA 140; Amaya v. Tecson, A.C. No. 5996, 7
February 2005, 450 SCRA 510, 516.
[49]
Bantolo v. Castillon, Jr., A.C. No. 6589, 19 December 2005, 478 SCRA 449.
[50]
Cabanilla v. Cristal-Tenorio, A.C. No. 6139, 11 November 2003, 415 SCRA 361. Guerrero v. Hernando, 160-A
Phil. 725 (1975).
[51]
Tan Tiong Bio v. Gonzales, A.C. No. 6634, 23 August 2007.

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,1refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence
this appeal.

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

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

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

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

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

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

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

The Spanish Civil Code permitted the execution of holographic wills along with other forms. The
Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby
repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may
execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form and may be made in or out of the Philippines, and need
not be witnessed."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a
Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal
may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto
E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic
wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference
lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in
the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The
loss of the holographic will entails the loss of the only medium of proof; if the ordinary will is lost, the
subscribing witnesses are available to authenticate.

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

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

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

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

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

In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we
think the evidence submitted by herein petitioner is so tainted with improbabilities and
inconsistencies that it fails to measure up to that "clear and distinct" proof required by Rule 77, sec.
6.11

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

Judgment affirmed, with costs against petitioner.

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

Footnotes

1 Now a member of the Court of Appeals.

2 The contents of the alleged will are for the purposes of this decision, immaterial.

3"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra
del testador." (Scaevola, Codigo Civil, Tomo 12, p. 348.)

4V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho
Civil Español (1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.

5 V. Sanchez Roman Op. Cit. Vol. 6, p. 357.

6 Manresa, Codigo Civil, 1932, Vol. 5, p. 481.

7We have no doubt that this concept and these doctrines concerning the Spanish Civil Code
apply to our New Civil Code, since the Commission in its Report (p. 52) merely "revived"
holographic wills, i.e., those known to the Spanish Civil Law, before Act 190.

8 Perhaps it may be proved by a photographic or photostatic copy. Evena 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.

9 We are aware of some American cases that admitted lost holographic wills, upon verbal
testimony. (Sec. 41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was
not discussed. Anyway it is safer to follow, in this matter, the theories of the Spanish law.

10 Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title.
The validity of these wills depends, exclusively on the authenticity of handwriting, and if
writing standards are not procurable, or not contemporaneous, the courts are left to the
mercy of the mendacity of witnesses. It is questionable whether the recreation of the
holographic testament will prove wise." (Lawyer's Journal, Nov. 30, 1950, pp. 556-557.)

11 Intestate of Suntay, 50 Off. Gaz., 5321.

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