ANGELA M. BUTTE vs.

MANUEL UY
September 12, 2016
By Robinson Manaig
Art 42
ANGELA M. BUTTE, plaintiff-appellant, vs. MANUEL UY a SONS, INC., defendant-
appellee
Facts: Jose V. Ramirez, during his lifetime, was a co-owner of a house and lot located at Sta.
Cruz, Manila. Other owners are Marie GarnierVda. de Ramirez, 1/6; José V. Ramirez, 1/6; José
E. Ramirez, 1/6; Belen T. Ramirez, 1/6; Rita De Ramirez, 1/6; and José Ma. Ramirez, 1/6.
On October 20, 1951. José V. Ramirez died. Subsequently, Special Proceeding No. 15026 was
instituted to settle his estate, that included the one-sixth (1/6) undivided share in the
aforementioned property. His last will and testament has been admitted to probate, wherein he
bequeathed his estate to his children and grandchildren and one-third (1/3) of the free portion to
Mrs. Angela M. Butte, hereinafter referred to as plaintiff-appellant. The Bank of the Philippine
Islands was appointed judicial administrator.
Meanwhile, on December 9, 1958, Mrs. Marie GarnierVda. de Ramirez, one of the co-owners of
the late José V. Ramirez in the Sta. Cruz property, sold her undivided 1/6 share to Manuel Uy&
Sons, Inc., defendant-appellee herein, for the sum of P500,000.00. After the execution an affidavit
to the effect that formal notices of the sale had been sent to all possible redemptioners, the deed
of sale was duly registered and the old TCT was cancelled in lieu of which a new one was issued
in the name of the vendee and the other-co-owners.
On the same day (December 9, 1958), Manuel Uya l Son Inc. sent a letter to the Bank of the
Philippine Islands as judicial administrator of the estate of the late José V. Ramirez informing it
of the above-mentioned sale. This letter, together with that of the bank, was forwarded by the
latter to Mrs. Butte.
On January 15, 1959, Mrs. Angela M. Butte, sent a letter and a Philippine National Bank cashier’s
check in the amount of P500,000.00 to Manuel Uy a l Sons, Inc. offering to redeem share sold by
Mrs. Marie GarnierVda. de Ramirez. This tender having been refused, plaintiff on the same day
consigned the amount in court and filed the corresponding action for legal redemption. Without
prejudice to the determination by the court of the reasonable and fair market value of the property
sold which she alleged to be grossly excessive, plaintiff prayed for conveyance of the property,
and for actual, moral and exemplary damages.
May 13, 1959, the court dismissed the plaintiff’s complaint.
Issue: WON the plaintiff in the case at bar has a right to redeem the property
Held: By law, the rights to the succession of a deceased person are transmitted to his heirs from
the moment of his death, and the right of succession includes all property, rights and obligations
that survive the decedent so from the instant of Jose Ramirez’ death, his heirs became co-owners
of an undivided share and co-owner of the whole property thus they became entitled to exercise
the right of legal redemption as soon as another co-owner has sold his undivided share to a
stranger. The presence of the judicial administrator is of no moment because the rights of
the administrator of possession and administration of the real and personal estate of the deceased
do not include the right of legal redemption of the undivided share sold to Manuel Uy and Sons
because the right to redeem only
came into existence when the sale was perfected 8 years from the death of Jose Ramirez. Thead
ministrator cannot exercise the right of redemption since the land was sold AFTER the death of
Ramirez. The administrator may exercise the right to redeem only if the right pertains to the
estate, and this can only happen if the sale of said portion to Uy was done before the death of
Ramirez.

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HEIRS OF PEDRO REGANON, JOVENCIA REGANON, MENCIA REGANON,
JOSEFA REGANON, VIOLETA REGANON, and FLORA REGANON, plaintiffs-
appellees,
 vs.
RUFINO IMPERIAL, defendant-appellant.
Facts:
On February 22, 1963, the heirs of Pedro Reganon filed a complaint for recovery of ownership
and possession of about one-hectare portion of a parcel of land situated at Miasi, Polanco,
Zamboanga del Norte with damages, against Rufino Imperial. Since the defendant failed to
answer within the reglementary period, the plaintiffs filed a motion to declare the former in
default that the trial court granted the motion. The court rendered a decision declaring the
plaintiffs lawful owners of the land in question and entitled to its peaceful possession and
enjoyment; ordering defendant immediately to vacate the portion occupied by him and to
restore the peaceful possession thereof to plaintiffs; and sentencing defendant to pay plaintiffs
the amount of P1,929.20 and the costs. The plaintiffs filed an ex parte motion for issuance of an
alias writ of execution and of an order directing the manager, or the representative, of the
Philippine National Bank-Dipolog Branch, to hold the share of defendant and deliver the same
to the provincial sheriff of the province to be applied to the satisfaction of the balance of the
money judgment. This was granted by the trial court. The Deputy Provincial Sheriff issued a
sheriffs notification for levy addressed to defendant, giving notice of the garnishment of the
rights, interests, shares and participation that defendant may have over the residuary estate of
the late Eulogio Imperial, consisting of the money deposited in the Philippine National Bank-
Dipolog Branch. The defendant first and second motion for reconsideration was denied by the
trial court.
ISSUES:

1. Upon the death of a ward, is the money accumulated in his guardianship proceedings and
deposited in a bank, still considered in custodia legisand therefore cannot be attached?
2. Is the residuary estate of a U.S. veteran, which consist in the aggregate accumulated sum from
the monthly allowances given him by the United States Veterans Administration (USVA)
during his lifetime, exempt from execution?
RULING:
1.No, because the new Rules of Court now specifically provides for the procedure to be
followed in case what is attached is in custodia legis. The clear import of this new provision is
that property under custodia legis is now attachable, subject to the mode set forth in said rule.
Besides, the ward having died, the guardianship proceedings no longer subsist: “The death of
the ward necessarily terminates the guardianship, and thereupon all powers and duties of the
guardian cease, except the duty, which remains, to make a proper accounting and settlement in
the probate court. ” When Eulogio Imperial died on September 13, 1962, the rights to his
succession — from the moment of his death — were transmitted to his heirs, one of whom is
his son and heir, defendant-appellant herein. This automatic transmission cannot but proceed
with greater ease and certainty than in this case where the parties agree that the residuary estate
is not burdened with any debt. “The rights to the succession of a person are transmitted
from the moment of death, and where, as in this case, the heir is of legal age and the estate
is not burdened with any debts, said heir immediately succeeds, by force of law, to the
dominion, ownership, and possession of the properties of his predecessor and
consequently stands legally in the shoes of the latter. ” That the interest of an heir in the
estate of a deceased person may be attached for purposes of execution, even if the estate is in
the process of settlement before the courts, is already a settled matter in this jurisdiction. It is
admitted that the heirs of Eulogio Imperial, including herein defendant-appellant, have on May
25, 1964 executed a Deed of Extrajudicial Partition. This instrument suffices to settle the entire
estate of the decedent — provided all the requisites for its validity are fulfilled — even without
the approval of the court. Therefore, the estate for all practical purposes have been settled.

2. It is defendant-appellant’s position that the residuary estate of Eulogio Imperial, a former U.S.
veteran, having been set aside from the monthly allowances given him by the United States
Veterans Administration (USVA) during his lifetime, is exempt from execution. Any pension,
annuity, or gratuity granted by a Government to its officers or employees in recognition of past
services rendered, is primordially aimed at tiding them over during their old age and/or
disability. This is therefore a rightpersonalissima, purely personal because founded on
necessity. It requires no argument to show that where the recipient dies, the necessity
motivating or underlying its grant necessarily ceases to be. Even more so in this case where the
law providing for the exemption is calculated to benefit U.S. veterans residing here, and is
therefore merely a manifestation of comity. Besides, the heirs of Eulogio Imperial, one of
whom is appellant, have already executed a Deed of Extrajudicial Partition — the end result of
which is that the property is no longer the property of the estate but of the individual heirs. And
it is settled that: “When the heirs by mutual agreement have divided the estate among
themselves, one of the heirs cannot therefore secure the appointment of an administrator to take
charge of and administer the estate or a part thereof. The property is no longer the property of
the estate, but of the individual heirs, whether it remains undivided or not.”
RAMIREZ v. BALTAZAR
GR No.L-25049, August 30, 1968
22 SCRA 918

FACTS: Victoriana Eguaras, single, mortgaged a real estate to spouses Baltazar, defendants in
this case. Upon demise of Victoriana, the mortgagees, as creditors of the deceased, filed a
petition for the intestate proceedings of Victoriana's estate, alleging further that plaintiffs
Felimon and Monica Ramirez are heirs of the deceased. Felimon was later appointed as
adminstrator but did not qualify so that Artemio Diawan was appointed as judicial administrator
of the estate. The mortgagees then filed a foreclosure of the property in question and succeeded,
after Diawan failed to file an answer against the petition. The foreclosure sale ensued, the
property was bought by the mortgagees themselves and the sale was confirmed by the court.
Felimon sued for the annulment of the entire foreclosure proceedings, alleging among others the
failure of the judicial administrator to protect their interests. Defendants contended that
plaintiffs have no legal capacity to sue and hava no cause of action.

ISSUE: Have plaintiffs the cause of action against the defendant?

HELD: Yes. There is no question that the rights to succession are automatically transmitted to
the heirs from the moment of the death of the decedent. While, as a rule, the formal declaration
or recognition to such successional rights needs judicial confirmation, this Court has, under
special circumstances, protected these rights from encroachments made or attempted before the
judicial declaration. In Pascual vs. Pascual, it was ruled that although heirs have no legal
standing in court upon the commencement of testate or intestate proceedings, this rule admits of
an exception as "when the administrator fails or refuses to act in which event the heirs may act
in his place."
Q
Ok

Nufable vs.
Nufable
G.R. No.
126950, 02
July 1999

Facts:
Edras Nufable owned an untitled parcel of land located at Poblacion, Manjuyod, Negros
Oriental, consisting of 948 square meters, more or less. He died on August 9, 1965 and was
survived by his children, namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed
Nufable. Upon petition for probate filed by said heirs and after due publication and hearing, the
then Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30, 1966
admitting to probate the last will and testament executed by the deceased Edras Nufable.
However, one of the heirs, Angel actually mortgaged the entire property to DBP two months prior
to the settlement which property was eventually foreclosed. Thereafter, Nelson, son of the
mortgagors, purchased said property from DBP.
The other heirs now filed for the annulment of sale in favor of Nelson. The Court of
Appeals rendered the assailed decision granting one-fourth of the property to Nelson and the other
three-fourths to the other heirs. Petitioners filed this present petition contending that the probate
of the Last Will and Testament of Edras Nufable did not determine the ownership of the land in
question as against third parties.

Issue:
Whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate
are pertinent and material to the question of the right of ownership of petitioner Nelson Nufable
who purchased the land in question from, and as acquired property of, the Development Bank of
the Philippines.
Ruling:
No, the Last Will and Testament of Edras and its subsequent probate do not affect the title
of Nelson. At the time when the entire property was mortgaged, the other heirs of Edras had
already acquired successional rights over the said property. This is so because the rights to the
succession are transmitted from the moment of death of the decedent.
Accordingly, for the purpose of transmission of rights, it does not matter whether the Last
Will and Testament of the late Esdras Nufable was admitted or that the Settlement of Estate was
approved. It is to be noted that the probated will of the late Esdras Nufable specifically referred
to the subject property in stating that "the land situated in the Poblacion, Manjuyod, Negros
Oriental, should not be divided because this must remain in common for them, but it is necessary
to allow anyone of them brothers and sisters to construct a house therein." It was therefor the will
of the decedent that the subject property should undivided, although the restriction should not
exceed twenty (20) years pursuant to Article 870 of the Civil Code.
Thus, when Angel Nufable and his spouses mortgaged the subject property to DBP on
March 15, 1966, they had no right to mortgage the entire property. Angel's right over the subject
property was limited only to 1/4 pro indivisoshare. As co-owner of the subject property, Angel's
right to sell, assign or mortgage is limited to that portion that may be allotted to him upon
termination of the co-ownership. Well-entrenched is the rule that a co-owner can only alienate
his pro indiviso share in the co-owned property. Hence, The Court of Appeals did not err in ruling
that Angel Custodio Nufable "had no right to mortgage the subject property in its entirety. His
right to encumber said property was limited only to 1/4 pro indiviso share of the property in
question."

Blas vs santos

Dominic Oswald C.
Halili
BLAS VS. SANT
OS 1 SCRA 899
FACTS: Simeon Bl
as contracted a fir
st marriage with
Marta Cruz
(FIRST WIFE)
with whom they h
ad three children
as well as grandch
ildren. The First w
ife diedand on the
 following year, Si
meon contracted
a second marriag
e with MaximaSa
ntos
SECOND WIFE
! "ut the #ro#erti
es he and his for
mer wife ac$uire
dduring the first
marriage were not
li$uidated.%ne w
ee& "efore the dea
th of Simeon Blas,
he executed a wil
l dis#osinghalf of
his #ro#erties in f
a'or of Maxima th
e other half for #a
yment of de"ts, Bl
asalso named a fe
w de'isees and leg
atees therein.(n 'ie
w of the fact that t
here were no li$ui
dation made on th
e #ro#erties of Si
meon Blas and th
e First )ife, he as&
ed his son*in*law,
 Andres +ascual, t
o#re#are a docum
ent where"y the Se
cond )ife, Maxima
Santos intimated t
hat sheunderstan
ds the will of her h
us"and that she
#romises that she-
ll "e gi'ing, u#onh
er death, one*half
of the #ro#erties s
he-
ll "e ac$uiring to t
he heirs and legat
eesnamed in the
will of his hus"an
d that she can s
elect or choose a
ny of themde#en
ding u#on the res
#ect, ser'ice, and
treatment accord
ed to her "y saidl
egatees heirs d
e'isees.The #re#ar
ation and executio
n of /xhi"it 0A0 w
as ordered "y Sim
eon Blase'idently t
o #re'ent his heirs
"y his first marria
ge from contestin
g his will anddem
anding li$uidatio
n of the con1ugal
#ro#erties ac$uir
ed during the firs
tmarriage.(n 2345
, Simeon Blas die
d. (n 2367, Maxi
ma died and 8osa
lina Santos "ecam
e administratrix of
her estate. The he
irs of Simeon Blas
learned thatMaxi
ma did not fulfill h
er #romise as it w
as learned that Ma
xima only dis#ose
dnot e'en one*tent
h of the #ro#ertie
s she ac$uired fro
m Simeon Blas.(S
S9/: )hether or no
t the heirs of Sime
on Blas should rec
ei'e #ro#erties "as
edon the #romise
of Maxima Santos
contained in /xhi"i
t A;</=>: The S
u#reme Court rule
d that the #romise
is 'alid and enforc
ea"le u#onMaxim
a-
s death. Though it
is not a will, as it l
ac&s the formality
, nor a donation, it
is still enforcea"le
"ecause said #rom
ise was actually ex
ecuted to a'oid liti
gation #artition
of Simeon Blas- es
tate!.(t is not dis#
uted that this doc
ument was #re#a
red at the instanc
e of Simeon Blas f
or the reason that
the con1ugal #ro#
erties of his first
marriage hadnot "
een li$uidated. (t i
s an o"ligation or
#romise made "y t
he ma&er to trans
mitone*half of her
share in the con1
ugal #ro#erties ac
$uired with her h
us"and, which#ro
#erties are stated
or declared to "e
con1ugal #ro#ert
ies in the
Neri vs. Akutin
G.R. No. L-47799, 13 June 1941
Facts:
Agripino Neri contracted two marriages wherein he had by his first marriage six children
named: Eleuterio, Agripino, Agapito, Getulia, Rosario and Celerina; and by his second marriage
with Ignacia Akutin, five children named: Gracia, Godofredo, Violeta, Estela Maria, and Emma.
Her daughter in the first marriage, Getulia, died a little less than eight years before the death of
Agripino, and was survived by seven children named Remedios, Encarnacion, Carmen, Trinidad,
Luz, Alberto and Minda. Clause 8 in a will left by Agripino was invoked by petitioners, wherein
the testator made the statement that the children by his first marriage had already received their
shares in his property excluding what he had given them as aid during their financial troubles.
The Court of Appeals affirmed the trial court's decision that contrary to what the testator
had declared in his will [that all his children by the first and second marriages are intestate heirs
of the deceased without prejudice to one-half of the improvements introduced in the properties
during the existence of the last conjugal partnership, which should belong to Ignacia Akutin] but
with the modification that the will was valid with respect to the two-thirds part which the testator
could freely dispose of. It ruled that there is no preterition but disinheritance in this case.

Issue:
Whether or not there exists preterition with respect to the children by the first marriage of
the decedent.

Ruling:
Yes, there is preterition. Preterition consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited. In the instant case,
while the children of the first marriage were mentioned in the will, they were not accorded any
share in the hereditary property, without expressly being disinherited. It is, therefore, a clear case
of preterition as contended by appellants. The omission of the forced heirs or anyone of them,
whether voluntary or involuntary, is a preterition if the purpose to disinherit is not expressly made
or is not at least manifest.
Preterition avoids the institution of heirs and gives rise to intestate succession except as to
"legacies and betterments" which "shall be valid in so far as they are not inofficious" (art. 814 of
the Civil Code), In the instant case, no such legacies or betterments have been made by the
testator. "Mejoras" or betterments must be expressly provided, according to articles 825 and 828
of the Civil Code, and where no express provision therefore is made in the will, the law would
presume that the testator had no intention to that effect. In the will subject of this case, no express
betterment is made in favor of the children by the first marriage; neither is there any legacy
expressly made in their behalf consisting of the third available for free disposal. The whole
inheritance is accorded the heirs by the second marriage upon the mistaken belief that the heirs
by the first marriage have already received their shares. Were it not for this mistake, the testator's
intention, as may be clearly inferred from his will, would have been to divide his property equally
among all his children.

Seangio vs. Reyes

G.R. Nos. 140371-72 November 27, 2006

Facts:

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the RTC, and
praying for the appointment of private respondent Elisa D. Seangio–Santos as special
administrator and guardian ad litem of petitioner Dy Yieng Seangio.
 Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2)
the deceased Segundo executed a general power of attorney in favor of Virginia giving her the
power to manage and exercise control and supervision over his business in the Philippines; 3)
Virginia is the most competent and qualified to serve as administrator of the estate of Segundo
because she is a certified public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In
view of the purported holographic will, petitioners averred that in the event the decedent is found
to have left a will, the intestate proceedings are to be automatically suspended and replaced by
the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise reiterated that
the probate proceedings should take precedence over SP. Proc. No. 98–90870 because testate
proceedings take precedence and enjoy priority over intestate proceedings.
On July 1, 1999, private respondents moved for the dismissal of the probate proceedings.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the
authority of the probate court is limited only to a determination of the extrinsic validity of the
will; 2) private respondents question the intrinsic and not the extrinsic validity of the will; 3)
disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition
does not apply because Segundo’s will does not constitute a universal heir or heirs to the exclusion
of one or more compulsory heirs

The RTC issued its assailed order, dismissing the petition for probate proceedings:

Issue:

Was there a valid disinheritance?

Ruling:

Yes. The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons
that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be
effected through a will wherein the legal cause therefor shall be specified. With regard to the
reasons for the disinheritance that were stated by Segundo in his document, the Court believes
that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his
son, Alfredo, and that the matter presents a sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code/
With regard to the issue on preterition, the Court believes that the compulsory heirs in the
direct line were not preterited in the will. It was, in the Court’s opinion, Segundo’s last expression
to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also,
Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention
of the name of one of the petitioners, Virginia, in the document did not operate to institute her as
the universal heir. Her name was included plainly as a witness to the altercation between Segundo
and his son, Alfredo.
Considering that the questioned document is Segundo’s holographic will, and that the law
favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the
Civil Code provides that no will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a
person to dispose of his property may be rendered nugatory.

FISCHER VS JOHNSON
PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA TARLAC VS
BELINA RIGOR

IN RE ESTATE OF RUSSEL SUPREME COUNTY OF CALIFORNIA

Testate of Amos Bellis vs. Edward A. Bellis, et al

FACTS:

Amos G. Bellis was a citizen of the State of Texas and of the United States. He had five legitimate
children with his first wife (whom he divorced), three legitimate children with his second wife
(who survived h wasim) and, finally, three illegitimate children.

6 years prior Amos Bellis’ death, he executed two(2) wills, apportioning the remainder of his
estate and properties to his seven surviving children. The appellants filed their oppositions to the
project of partition claiming that they have been deprived of their legitimes to which they were
entitled according to the Philippine law. Appellants argued that the deceased wanted his
Philippine estate to be governed by the Philippine law, thus the creation of two separate wills.

ISSUE:

Whether or not the Philippine law be applied in the case in the determination of the illegitimate
children’s successional rights

RULING:

Court ruled that provision in a foreigner’s will to the effect that his properties shall be distributed
in accordance with Philippine law and not with his national law, is illegal and void, for his national
law cannot be ignored in view of those matters that Article 10 — now Article 16 — of the Civil
Code states said national law should govern.

Where the testator was a citizen of Texas and domiciled in Texas, the intrinsic validity of his will
should be governed by his national law. Since Texas law does not require legitimes, then his will,
which deprived his illegitimate children of the legitimes, is valid.

The Supreme Court held that the illegitimate children are not entitled to the legitimes under the
texas law, which is the national law of the deceased.

EUTIQUIA AVERA, petitioner-appellee,

vs.
MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and
Jose Garcia,objectors-appellants.
LAWYERS
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
PONENTE
STREET, J.:
FACTS OF THE CASE
In proceedings in the court below, instituted by
· Eutiquia Avera instituted for probate of the will of one Esteban Garcia,
· contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of
guardian for the minors Jose Garcia and Cesar Garcia.
· Upon the date appointed for the hearing, the proponent of the will introduced one of the
three attesting witnesses who testified — with details not necessary to be here specified — that
the will was executed with all necessary external formalities, and that the testator was at the
time in full possession of disposing faculties.
· Upon the latter point the witness was corroborated by the person who wrote the will at the
request of the testator. Two of the attesting witnesses were not introduced, nor was their
absence accounted for by the proponent of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose
testimony tended to show in a vague and indecisive manner that at the time the will was made
the testator was so debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial
judge found that the testator at the time of the making of the will was of sound mind and
disposing memory and that the will had been properly executed. He accordingly admitted the
will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will, and the
only errors here assigned have reference to the two following points, namely, first,
ISSUE
A. whether a will can be admitted to probate, where opposition is made, upon the proof of a
single attesting witness, without producing or accounting for the absence of the other two; and,
B. secondly, whether the will in question is rendered invalid by reason of the fact that the
signature of the testator and of the three attesting witnesses are written on the right margin of
each page of the will instead of the left margin.
HELD
A. YES, Upon the first point, while it is undoubtedly true that an uncontested will bay be
proved by the testimony of only one of the three attesting witnesses, nevertheless in Cabang vs.
Delfinado (34 Phil., 291), this court declared after an elaborate examination of the American
and English authorities that when a contest is instituted, all of the attesting witnesses must be
examined, if alive and within reach of the process of the court.
There are at least two reason why the appellate tribunals are disinclined to permit certain
questions to be raised for the first time in the second instance. In the first place it eliminates the
judicial criterion of the Court of First Instance upon the point there presented and makes the
appellate court in effect a court of first instance with reference to that point, unless the case is
remanded for a new trial. In the second place, it permits, if it does not encourage, attorneys to
trifle with the administration of justice by concealing from the trial court and from their
opponent the actual point upon which reliance is placed, while they are engaged in other
discussions more simulated than real. These considerations are, we think, decisive.
B. YES, The second point involved in this case is whether, under section 618 of the Code of
Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in this
jurisdiction that the names of the testator and the instrumental witnesses should be written on
the left margin of each page, as required in said Act, and not upon the right margin, as in the
will now before us; and upon this we are of the opinion that the will in question is valid. It is
true that the statute says that the testator and the instrumental witnesses shall sign their names
on the left margin of each and every page; and it is undeniable that the general doctrine is to the
effect that all statutory requirements as to the execution of wills must be fully complied with.
The same doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be
absurd to suppose that the Legislature could have attached any decisive importance to them.
The provision to the effect that the signatures of the testator and witnesses shall be written on
the left margin of each page — rather than on the right margin — seems to be this character. So
far as concerns the authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided they are on one
or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported),
this court declared a will void which was totally lacking in the signatures required to be written
on x several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise
declared void which contained the necessary signatures on the margin of each leaf ( folio), but
not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only
point of deviation from the requirement of the statute is that these signatures appear in the right
margin instead of the left. By the mode of signing adopted every page and provision of the will
is authenticated and guarded from possible alteration in exactly the same degree that it would
have been protected by being signed in the left margin; and the resources of casuistry could be
exhausted without discovering the slightest difference between the consequences of affixing the
signatures in one margin or the other.
In the case before us, where ingenuity could not suggest any possible prejudice to any person,
as attendant upon the actual deviation from the letter of the law, such deviation must be
considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment appealed from will
be affirmed. It is so ordered, with costs against the appellants

ayuye vs Mojal
CASE NUMBER
G.R. No. L-21755 December 29, 1924
CASE TITLE
In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitioner-
appellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
LAWYERS
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.
PONENTE
ROMUALDEZ, J.:
FACTS OF THE CASE
Proceeding This is a proceeding for the probate of the will of the deceased Antonio Mojal
instituted by his surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal
and Luciana Aguilar, sister and niece, respectively, of the deceased.
Court of First Instance
of Albay, which tried the case, overruled the objections to the will, and ordered the probate
thereof, holding that the document in controversy was the last will and testament of Antonio
Mojal, executed in accordance with law. From this judgment the opponents appeal, assigning
error to the decree of the court allowing the will to probate and overruling their opposition.
Supreme Court
Therefore, as in the instant case the fact that the testator and the witnesses signed each and
every page of the will is proven by the mere examination of the signatures in the will, the
omission to expressly state such evident fact does not invalidate the will nor prevent its
probate.Cost against Appelant
ISSUE RELATED TO WILLS AND SUCCESSION
The defects attributed to the will are:
(a) The fact of not having been signed by the testator and the witnesses on each and every sheet
on the left margin;
(b) the fact of the sheets of the document not being paged with letters;
(c) the fact that the attestation clause does not state the number of sheets or pages actually used
of the will; and
(d) the fact that the testator does not appear to have signed all the sheets in the presence of the
three witnesses, and the latter to have attested and signed all the sheets in the presence of the
testator and of each other
HELD
a) YES, As to the signatures on the margin, it is true, as above stated, that the third page
actually used was signed by the testator, not on the left margin, as it was by the witnesses, but
about the middle of the page and the end of the will; and that the fourth page was signed by the
witnesses, not on the left margin, as it was by the testator, but about the middle of the page and
at the end of the attestation clause.

In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil.,
145), is applicable, wherein the will in question was signed by the testator and the witnesses,
not on the left, but right, margin. The rule laid down in that case is that the document contained
the necessary signatures on each page, whereby each page of the will was authenticated and
safeguarded against any possible alteration. In that case, the validity of the will was sustained,
and consequently it was allowed to probate.

b) Turning to the second defect alleged, that is to say, the fact that the sheets of the document
are not paged with letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where
this court held that paging with Arabic numerals and not with letters, as in the case before us, is
within the spirit of the law and is just as valid as paging with letters.

Applying that doctrine to the instant case, we hold that, as each and every page used of the will
bears the signatures of the testator and the witnesses, the fact that said signatures do not all
appear on the left margin of each page does not detract from the validity of the will.

c) As to the proposition that the attestation clause does not state the number of sheets or
pages of the will, which is the third defect assigned, it must be noted that the last paragraph of
the will here in question and the attestation clause, coming next to it, are of the following tenor:
In witness whereof, I set my hand unto this will here in the town of Camalig, Albay, Philippine
Islands, this 26th day of November, nineteen hundred and eighteen, composed of four sheets,
including the next:
ANTONIO MOJAL
(Signed and declared by the testator Don Antonio Mojal to be his last will and testament in the
presence of each of us, and at the request of said testator Don Antonio Mojal, we signed this
will in the presence of each other and of the testator.)
PEDRO CARO
SILVERIO MORCO
ZOILO MASINAS
As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in
the case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause
must state the number of sheets or pages composing the will; but when, as in the case before us,
such fact, while it is not stated in the attestation clause, appears at the end of the will proper, so
that no proof aliunde is necessary of the number of the sheets of the will, then there can be no
doubt that it complies with the intention of the law that the number of sheets of which the will is
composed be shown by the document itself, to prevent the number of the sheets of the will from
being unduly increased or decreased.
d) With regard to the last defect pointed out, namely, that the testator does not appear to have
signed on all the sheets of the will in the presence of the three witnesses, and the latter to have
attested and signed on all the sheets in the presence of the testator and of each other, it must be
noted that in the attestation clause above set out it is said that the testator signed the will "in the
presence of each of the witnesses" and the latter signed "in the presence of each other and of the
testator." So that, as to whether the testator and the attesting witnesses saw each other sign the
will, such a requirement was clearly and sufficiently complied with. What is not stated in this
clause is whether the testator and the witnesses signed all the sheets of the will.

The act of the testator and the witnesses seeing reciprocally the signing of the will is one which
cannot be proven by the mere exhibition of the will unless it is stated in the document. And this
fact is expressly stated in the attestation clause now before us. But the fact of the testator and
the witnesses having signed all the sheets of the will may be proven by the mere examination of
the document, although it does not say anything about this, and if that is the fact, as it is in the
instant case, the danger of fraud in this respect, which is what the law tries to avoid, does not
exist.

In RE Tampoy: Diosdada Alberastine, petitioner

GR L-14322, 25 February 1960 (107 Phil 100)En Banc, Bautista Angelo (p): 10 concurring
Facts:
On 19 November 1939, Petronila Tampoy, a widow and without children, requested
withBonifacio Minoza to read a testament and explain its contents to her in her house in San
Miguel street,municipality of Argao, province of Cebu in 19 November 1939, which he did in
the presence of tree

instrumental witnesses, Rosario K. Chan, Mauricio de la Pena, and Simeona Omboy. After
confirmingthe contents of the testament, she requested Bonifacio Minoza to write her name at
the foot of the

testament in the second page, which he did, and after which she stamped her thumbmark
betweenher name and surname in the presence of all three instrumental witnesses. Bonifacio
Minoza alsosigned at the foot of the testament, in the second page, in the presence of the
testator and all threeabovenamed witnesses. However, the testator, just like Bonifacio Minoza,
did not sign on the leftmargin or any part of the first page of the testament, composed of two
pages. All the threeinstrumental witnesses signed at the foot of the acknowledgment written in
the second page of thetestament, and the left margin of the first and second page, in the
presence of the testator, BonifacioMinoza, Atty. Kintanar, and the others. The testament was
executed freely and spontaneously, withouthaving been threatened, forced and intimidated, and
not having exercised on her (the testator) undue

influence, being the same in full use of her mental faculties and enjoying good health. On 22
February1957, the testator died in here house in Argao.On 7 March 1957, or two weeÁ after,
The heir found in the testament, Carman Aberastine died,leaving her mother, the petitioner
Diosdada Alberastine. After trial on the probate o a documentpurportedly to be the last and
testament of Petronila Rampoy, the trial court denied the petition on

the ground that the left hand margin of the first page of the will does not bear the thumbmark of
thetestatrix. Petitioner appealed from this ruling. The Court of Appeals certified the case to the
Supreme

Court because it involves purely a question of law.

Issue:
Whether the absence of the testator¶s thumbmark in the first page is fatal to render the willvoid
Held:
Statutes prescribing the formalities to be observed in the execution of wills are very
strictlyconstrued. A will must be executed in accordance with the statutory requirements;
otherwise it isentirely void. In the present case, the contention that the petition for probate is
unopposed, and thatthe three testimonial witnesses testified and manifested to the court that the
document expresses thetrue and voluntary will of the deceased, cannot be sustained as it runs
counter to the expressprovision of the law. Since the will suffers the fatal defect, as it does not
bear the thumbmark of thetestatrix on its first page even if it bears the signature of the three
instrumental witnesses, the same
fails to comply with the law and therefore cannot be admitted to probate.The Supreme Court
affirmed the appealed order, without pronouncement as to

ALDABA vs. CA- Donation

A letter showing an intention to donate is not sufficient to prove donation; and most certainly
not the form required by law in donations.

FACTS:
Two lots owned by Belen Aldaba are being disputed in this case. Petitoners Dr. Vicente Aldaba
and Jane Aldaba, father and daughter, lived with Belen Aldaba for 10 years and took care of her
until her death. Belen had presumptive heirs her surviving husband Estanislao Bautista, and her
brother Cesar Aldaba (represented as the respondents in this case.) After the death of Belen, the
respondents asked the petitioners to leave the premises and upon their refusal, the former
instituted an ejectment case. The petitioners argue that Belen really intended to donate the
property to them as evidence by the note written by Belen to them which reads, ―Huag kayong
umalis diyan. Talagang iyan ay para sa inyo. Alam nila na iyan ay sa inyo.‖ They also argue that
the property was for compensation of their services which amounted to P53,000. The
respondents contend that the letter no way proves a donation.
ISSUE:
Whether or not there was a disposition of property by Belen in favour of the petitioners?
RULING: NO
For the following reasons: (1) The note was insufficient conveyance, and hence could not be
considered as evidence of a donation with onerous caus. The note can be considered, at most, as
indicative of the intention to donate. (2) no notarial document was executed by Belen to the
petitioners during those 10 years. (3) P53,000 worth of services made by the petitioners no way
proves the alleged donation. If at all, the petitioners believed that the gratuitous use of the
property was not sufficient to compensate them for their services, they could have presented
their claims in the intestate proceedings, which they themselves could have initiated, if none
was instituted.
The SC emphasized that there was no express agreement between the parties and that
respondents Jane did not even expect to be compensated.

Ajero v. CA
236 SCRA 488

FACTS:

The holographic will of Annie San was submitted for probate.

Private respondent opposed the petition on the grounds that: neither the testament’s body nor
the signature therein was in decedent’s handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence.
The petition was also contested by Dr. Ajero with respect to the disposition in the will of a
house and lot. He claimed that said property could not be conveyed by decedent in its entirety,
as she was not its sole owner.

However, the trial court still admitted the decedent’s holographic will to probate.
The trial court held that since it must decide only the question of the identity of the will, its due
execution and the testamentary capacity of the testatrix, it finds no reason for the disallowance
of the will for its failure to comply with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.

On appeal, the CA reversed said Decision holding that the decedent did not comply with
Articles 313 and 314 of the NCC. It found that certain dispositions in the will were either
unsigned or undated, or signed by not dated. It also found that the erasures, alterations and
cancellations made had not been authenticated by decedent.

ISSUE:

Whether the CA erred in holding that Articles 813 and 814 of the NCC were not complies with.

HELD:

YES. A reading of Article 813 shows that its requirement affects the validity of the dispositions
contained in the holographic will, but not its probate. If the testator fails to sign and date some
of the dispositions, the result is that these dispositions cannot be effectuated. Such failure,
however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance
with the provisions of Article 814.

Unless the authenticated alterations, cancellations or insertions were made on the date of the
holographic will or on testator’s signature, their presence does not invalidate the will itself. The
lack of authentication will only result in disallowance of such changes.

It is also proper to note that he requirements of authentication of changes and signing and dating
of dispositions appear in provisions (Article 813 and 814) separate from that which provides for
the necessary conditions for the validity of the holographic will (Article 810).

This separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the NCC – and not those found in Articles 813 and 814 – are essential to the
probate of a holographic will.

Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the
grounds for disallowance of wills. These lists are exclusive; no other grounds can serve to
disallow a will.

In a petition to admit a holographic will, the only issues to be resolved are:

1.whether the instrument submitted is, indeed, the decedent’s last will and testament;

2.whether said will was executed in accordance with the formalities prescribed by law;

3.whether the decedent had the necessary testamentary capacity at the time the will was
executed; and

4.whether the execution of the will and its signing were the voluntary acts of the decedent.
The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud; accordingly, laws on this subject should be interpreted to attain these primordial
ends.

In the case of holographic wills, what assures authenticity is the requirement that they be totally
authographic or handwritten by the testator himself. Failure to strictly observe other formalities
will no result in the disallowance of a holographic will that is unquestionable handwritten by
the testator

Azaola v. Singson
109 P 102

FACTS:

Fortunata S. Vda. De Yance died in Quezon City on September 9, 1957. Petitioner submitted
for probate her holographic will, in which Maria Azaola was made the sole heir as against the
nephew, who is the defendant. Only one witness, Francisoco Azaola, was presented to testify on
the handwriting of the testatrix. He testified that he had seen it one month, more or less, before
the death of the testatrix, as it was given to him and his wife; and that it was in the testatrix’s
handwriting. He presented the mortgage, the special power of the attorney, and the general
power of attorney, and the deeds of sale including an affidavit to reinforce his statement. Two
residence certificates showing the testatrix’s signature were also exhibited for comparison
purposes.

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

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

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

ISSUE:

W/N Article 811 of the Civil Code is mandatory or permissive.

HELD:

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

This is the reason why the 2nd paragraph of Article 811 allows the court to resort to expert
evidence. The law foresees the possibility that no qualified witness may be found (or what
amounts to the same thing, that no competent witness may be willing to testify to the
authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

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

Codoy v. Calugay
312 SCRA 333

FACTS:

On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and
legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed a petition
for probate of the said will. They attested to the genuineness and due execution of the will on 30
August 1978.

Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that the will was
a forgery and that the same is even illegible. They raised doubts as regards the repeated
appearing on the will after every disposition, calling the same out of the ordinary. If the will
was in the handwriting of the deceased, it was improperly procured.

Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.

The first witness was the clerk of court of the probate court who produced and identified the
records of the case bearing the signature of the deceased.
The second witness was election registrar who was made to produce and identify the voter’s
affidavit, but failed to as the same was already destroyed and no longer available.

The third, the deceased’s niece, claimed that she had acquired familiarity with the deceased’s
signature and handwriting as she used to accompany her in collecting rentals from her various
tenants of commercial buildings and the deceased always issued receipts. The niece also
testified that the deceased left a holographic will entirely written, dated and signed by said
deceased.

The fourth witness was a former lawyer for the deceased in the intestate proceedings of her late
husband, who said that the signature on the will was similar to that of the deceased but that he
can not be sure.

The fifth was an employee of the DENR who testified that she was familiar with the signature
of the deceased which appeared in the latter’s application for pasture permit. The fifth,
respondent Evangeline Calugay, claimed that she had lived with the deceased since birth where
she had become familiar with her signature and that the one appearing on the will was genuine.

Codoy and Ramonal’s demurrer to evidence was granted by the lower court. It was reversed on
appeal with the Court of Appeals which granted the probate.

ISSUE:

1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly declare
the signature in a contested will as the genuine signature of the testator, is mandatory or
directory.

2. Whether or not the witnesses sufficiently establish the authenticity and due execution of the
deceased’s holographic will.

HELD:

1. YES. The word “shall” connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word “shall”, when
used in a statute, is mandatory.

In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the
deceased and the evil to be prevented is the possibility that unscrupulous individuals who for
their benefit will employ means to defeat the wishes of the testator.

The paramount consideration in the present petition is to determine the true intent of the
deceased.

2. NO. We cannot be certain that the holographic will was in the handwriting of the deceased.

The clerk of court was not presented to declare explicitly that the signature appearing in the
holographic will was that of the deceased.

The election registrar was not able to produce the voter’s affidavit for verification as it was no
longer available.

The deceased’s niece saw pre-prepared receipts and letters of the deceased and did not declare
that she saw the deceased sign a document or write a note.

The will was not found in the personal belongings of the deceased but was in the possession of
the said niece, who kept the fact about the will from the children of the deceased, putting in
issue her motive.

Evangeline Calugay never declared that she saw the decreased write a note or sign a document.

The former lawyer of the deceased expressed doubts as to the authenticity of the signature in the
holographic will.

(As it appears in the foregoing, the three-witness requirement was not complied with.)

A visual examination of the holographic will convinces that the strokes are different when
compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of their
opposition.

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

However, we cannot eliminate the possibility of a false document being adjudged as the will of
the testator, which is why if the holographic will is contested, the law requires three witnesses
to declare that the will was in the handwriting of the deceased.

Article 811, paragraph 1. provides: “In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature of the testator explicitly
declare that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.”

The word “shall” connotes a mandatory order, an imperative obligation and is inconsistent with
the idea of discretion and that the presumption is that the word “shall”, when used in a statute, is
mandatory.

Suroza v. Honrado
110 SCRA 388

FACTS:

Spouses Mauro Suroza and Marcelina Salvador, who were childless, reared a boy named Agapito.
Agapito and his wife Nenita de Vera had a daughter named Lilia. Nenita became Agapito’s
guardian when he became disabled. A certain Arsenia de la Cruz also wanted to be his guardian
in another proceeding but it was dismissed. Arsenia then delivered a child named Marilyn Sy to
Marcelina who brought her up as a supposed daughter of Agapito. Marilyn used the surname
Suroza although not legally adopted by Agapito. When Marcelina (who was an illiterate) was 73
years old, she supposedly executed a notarial will which was in English and thumbmarked by her.
In the will, she allegedly bequeathed all her properties to Marilyn. She also named as executrix
her laundrywoman, Marina Paje. Paje filed a petition for probate of Marcelina’s will. Judge
Honrado appointed Paje as administratrix and issued orders allowing the latter to withdraw money
from the savings account of Marcelina and Marilyn, and instructing the sheriff to eject the
occupants of testatrix’s house, among whom was Nenita. She and the other occupants filed a
motion to set aside the order ejecting them, alleging that Agapito was the sole heir of the deceased,
and that Marilyn was not the decedent’s granddaughter. Despite this, Judge Honrado issued an
order probating Marcelina’s will.

Nenita filed an omnibus petition to set aside proceedings, admit opposition with counter-petition
for administration and preliminary injunction, and an opposition to the probate of the will and a
counter-petition for letters of administration, which were dismissed by Judge Honrado. Instead
of appealing, Nenita filed a case to annul the probate proceedings but Judge Honrado dismissed
it. The judge then closed the testamentary proceeding after noting that the executrix had delivered
the estate to Marilyn, and that the estate tax had been paid.

Ten months later, Nenita filed a complaint before the SC, charging Judge Honrado with having
probated the fraudulent will of Marcelina. She 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 will was written. She further alleged that Judge Honrado
did not take into account the consequences of the preterition of testatrix’s son, Agapito. Judge
Honrado in his comment did not deal specifically with the allegations but merely pointed to the
fact that Nenita did not appealfrom the decree of probate and that in a motion, she asked for a
thirty day period within which to vacate the house of the testatrix. Nenita subsequently filed in
the CA a petition for certiorari and prohibition against Judge Honrado wherein she prayed that
the will, the decree of probate and all the proceedings in the probate case be declared void. The
CA 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. Relying on that decision, Judge
Honrado filed a MTD the administrative case for having allegedly become moot and academic.

ISSUE:

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

HELD:

YES. Respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is
void. In the opening paragraph of the will, it was stated that English was a language “understood
and known” to the testatrix. But in its concluding paragraph, it was stated that the will was read
to the testatrix “and translated into Filipino language”. 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.

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 the 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.

TESTACY OF SIXTO LOPEZ, JOSE LOPEZ VS. LIBORO(GR No. L-1787; Aug. 27,
1978)FACTS: The will subject of the controversy is the last will and testament of Don Sixto
Lopezwho died at the age of 83 in Balayan, Batangas on March 3, 1947. Only one of the
objectionsraised in the lower court was raised on appeal: that the said will (Exhibit A) was not
executedin accordance with requirements under the law. The fatal defect pertained to by
theoppositor is the absence of a page in the first sheet, either in letters or in Arabic numerals. In
the case of Abangan, the purpose of the law in prescribing the paging of wills is to guardagainst
fraud, and to afford means of preventing the substitution or of detecting the loss of any ofits
pages. Another, the Supreme Court dwelled on the issue also of putting his thumbmark by
thetestator instead of a signature. Lastly, Supreme Court raised that appellant impugns the
willbecause of its silence on the testator’s understanding of the language used in the testament
whichis Spanish.
Issues: (1) WON the will was validly executed despite the absence of a page number.(2) WON
the thumbmark used by the testator is sufficient in lieu of his signature.(3) WON the testator’s
knowledge of the Spanish language used in the will is material.

Held: (1) Yes. The will is still valid despite the absence of a page number on the first sheet.The
omission to put a page number on the first sheet, if that be necessary, is suppliedby other forms
of identification more trustworthy than the conventional numeralwords or characters. The
Supreme Court determined the first sheet as the first page byvirtue of the document’s (will)
contents for which the said sheet was logically andcoherently a precedent of the second one and
the two cannot be interchanged sincethere were only two sheets. (2) Yes. The thumbmark was
sufficient in lieu of his signature. The Court took noticeof the fact that the testator was suffering
from partial paralysis. The Court added thatit was a matter of taste or preference. A statute
requiring a will to be "signed" issatisfied if the signature is made by the testator's mark. (De
Gala vs. Gonzales andOna, 53 Phil., 108)