SUCCESSION FEB 20 ASSIGNMENT

III. Holographic wills; witnesses to wills; codicils and incorporation by reference;

revocation of wills and testamentary dispositions; republication and revival of wills)

Articles  810-837, Civil Code:

Art. 810. 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.(678,
688a)

Art. 811. 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.

In the absence of any competent witness referred to in the preceding paragraph, and
if the court deem it necessary, expert testimony may be resorted to. (619a)

Art. 812. In holographic wills, the dispositions of the testator written below his
signature must be dated and signed by him in order to make them valid as
testamentary dispositions. (n)

Art. 813. When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and a date, such date
validates the dispositions preceding it, whatever be the time of prior
dispositions. (n)

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

holographic will, the testator must authenticate the same by his full signature. (n)

Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in

any of the forms established by the law of the country in which he may be. Such will
may be probated in the Philippines. (n)

Art. 816. The will of an alien who is abroad produces effect in the Philippines if
made with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those
which this Code prescribes. (n)

Art. 817. A will made in the Philippines by a citizen or subject of another country,
which is executed in accordance with the law of the country of which he is a citizen
or subject, and which might be proved and allowed by the law of his own country,
shall have the same effect as if executed according to the laws of the
Philippines. (n)

Art. 818. Two or more persons cannot make a will jointly, or in the same
instrument, either for their reciprocal benefit or for the benefit of a third
person. (669)
SUCCESSION FEB 20 ASSIGNMENT

Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a

foreign country shall not be valid in the Philippines, even though authorized by the
laws of the country where they may have been executed. (733a) 

 

SUBSECTION 4. - Witnesses to Wills

Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not bind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in Article 805 of this Code. (n)
Art. 821. The following are disqualified from being witnesses to a will:

• (1) Any person not domiciled in the Philippines;


(2) Those who have been convicted of falsification of a document, perjury or
false testimony. (n)


Art. 822. If the witnesses attesting the execution of a will are competent at the time
of attesting, their becoming subsequently incompetent shall not prevent the
allowance of the will. (n)
Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or
parent, or child, a devise or legacy is given by such will, such devise or legacy shall,
so far only as concerns such person, or spouse, or parent, or child of such person, or
any one claiming under such person or spouse, or parent, or child, be void, unless
there are three other competent witnesses to such will. However, such person so
attesting shall be admitted as a witness as if such devise or legacy had not been
made or given. (n)

Art. 824. A mere charge on the estate of the testator for the payment of debts due at
the time of the testator's death does not prevent his creditors from being competent
witnesses to his will. (n)

SUBSECTION 5. - Codicils and Incorporation by Reference

Art. 825. A codicil is supplement or addition to a will, made after the execution of a
will and annexed to be taken as a part thereof, by which disposition made in the
original will is explained, added to, or altered. (n)

Art. 826. In order that a codicil may be effective, it shall be executed as in the case
of a will. (n)

Art. 827. If a will, executed as required by this Code, incorporates into itself by
reference any document or paper, such document or paper shall not be considered a
part of the will unless the following requisites are present:

• (1) The document or paper referred to in the will must be in existence at the
time of the execution of the will;

(2) The will must clearly describe and identify the same, stating among other
things the number of pages thereof;

(3) It must be identified by clear and satisfactory proof as the document or
SUCCESSION FEB 20 ASSIGNMENT

paper referred to therein; and


(4) It must be signed by the testator and the witnesses on each and every
page, except in case of voluminous books of account or inventories. (n)


SUBSECTION 6. - Revocation of Wills and Testamentary Dispositions

Art. 828. A will may be revoked by the testator at any time before his death. Any
waiver or restriction of this right is void. (737a)
Art. 829. A revocation done outside the Philippines, by a person who does not have
his domicile in this country, is valid when it is done according to the law of the place
where the will was made, or according to the law of the place in which the testator
had his domicile at the time; and if the revocation takes place in this country, when
it is in accordance with the provisions of this Code. (n)

Art. 830. No will shall be revoked except in the following cases:

• (1) By implication of law; or


(2) By some will, codicil, or other writing executed as provided in case of
wills; or

(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person in
his presence, and by his express direction. If burned, torn, cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (n)


Art. 831. Subsequent wills which do not revoke the previous ones in an express
manner, annul only such dispositions in the prior wills as are inconsistent with or
contrary to those contained in the latter wills. (n)
Art. 832. A revocation made in a subsequent will shall take effect, even if the new
will should become inoperative by reason of the incapacity of the heirs, devisees or
legatees designated therein, or by their renunciation. (740a)

Art. 833. A revocation of a will based on a false cause or an illegal cause is null and
void. (n)

Art. 834. The recognition of an illegitimate child does not lose its legal effect, even
though the will wherein it was made should be revoked. (714) 

 

SUBSECTION 7. - Republication and Revival of Wills

Art. 835. The testator cannot republish, without reproducing in a subsequent will,
the dispositions contained in a previous one which is void as to its form. (n)
SUCCESSION FEB 20 ASSIGNMENT

Art. 836. The execution of a codicil referring to a previous will has the effect of
republishing the will as modified by the codicil. (n)

Art. 837. If after making a will, the testator makes a second will expressly revoking
the first, the revocation of the second will does not revive the first will, which can be
revived only by another will or codicil. (739a) 

*CASES:

1) SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF

APPEALS AND CLEMENTE SAND, respondents. [G.R. No. 106720. September 15,
1994.]

2) IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs.
ANDRES R. DE JESUS, JR., respondent. [G.R. No. 38338. January 28, 1985.]

3) In re Will of Francisco Varela Calderon, deceased. FRANCISCO CARMELO VARELA,

petitioner-appellee, vs. MIGUEL VARELA CALDERON ET AL., opponents-appellants. [G.R.
No. 36342. October 8, 1932.]

4) TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN,

petitioner-appellant , vs. ILDEFONSO YAP, oppositor- appellee. [G.R. No. L-12190. August
30, 1958.]

5) IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.

BONILLA, deceased, MARCELA RODELAS, petitioner- appellant, vs. AMPARO ARANZA,
ET AL., oppositors-appellees, ATTY. LORENZO SUMULONG, intervenor. [G.R. No.
L-58509. December 7, 1982.]

6) FEDERICO AZAOLA, petitioner-appellant , vs. CESARIO SINGSON, oppositor-appellee.

[G.R. No. L-14003. August 5, 1960.]

7) EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs. EVANGELINE

R. CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA PATIGAS, respondents. [G.R. No.
123486. August 12, 1999.]

8) PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL., and
THE HONORABLE COURT OF APPEALS, respondents. [G.R. No. L-20234. December
23, 1964.]

9) RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS

and LUTGARDA SANTIAGO, respondents. [G.R. No. L-37453. May 25, 1979]

10) AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR, Presiding
Judge of Branch I, Court of First Instance of Cebu, and MANUEL B. LUGAY,
respondents. [G.R. No. L-32213. November 26, 1973.]
SUCCESSION FEB 20 ASSIGNMENT

11) In re estate of the deceased Leonarda Macam y Capili. NICOLASA MACAM, petitioner-
appellant, vs. JUANA GATMAITAN, oppositor-appellant. [G.R. No. 40445. August 17, 1934.]

12) In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs.
ANA DE LEON, opponent-appellee. [G.R. No. L-17714. May 31, 1922.]

13) Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner- appellant, vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA
MAMUYAC, opponents-appellees. [G.R. No. 26317. January 29, 1927.]

14) In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE, administrator-
appellant , vs. PETRONA AREVALO, ET AL., oppositors- appellees. [G.R. No. 47305. July
31, 1942.]

15) CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION EUGENIO, petitioners-
appellants, vs. MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-
appellants. [G.R. No. 11823. February 11, 1918.]

16) Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE
MOLO, petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositor-
appellants. [G.R. No. L-2538. September 21, 1951.]

17) TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,
CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF
MOLO, AND ASILO DE MOLO, petitioners, vs. COURT OF APPEALS, PANFILO
MALOTO AND FELINO MALOTO, respondents. [G.R. No. 76464. February 29, 1988.]
 SECOND DIVISION

[G.R. No. 106720. September 15, 1994.]

SPOUSES ROBERTO AND THELMA AJERO , petitioners, vs. THE COURT

SAND respondents.
OF APPEALS AND CLEMENTE SAND,

DECISION

PUNO , J : p

This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R.
CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
"PREMISES CONSIDERED, the questioned decision of November 19, 1988
of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate
is hereby DISMISSED. No costs."

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc.
No. Q-37171, and the instrument submitted for probate is the holographic will of the
late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children. prLL

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue in uence, and was in
every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's handwriting; it contained
alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue in uence. The petition was
likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and
lot located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary capacity of
the testatrix, this probate court nds no reason at all 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.

"For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was not written in the handwriting of
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 the testatrix which properly refers to the question of its due execution, and not to
the question of identity of will. No other will was alleged to have been executed by
the testatrix other than the will herein presented. Hence, in the light of the
evidence adduced, the identity of the will presented for probate must be accepted,
i.e., the will submitted in Court must be deemed to be the will actually executed by
the testatrix.

"xxx xxx xxx

"While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however, have
satisfactorily shown in Court that the holographic will in question was indeed
written entirely, dated and signed in the handwriting of the testatrix. Three (3)
witnesses who have convincingly shown knowledge of the handwriting of the
testatrix have been presented and have explicitly and categorically identi ed the
handwriting with which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the holographic will be entirely written,
dated and signed in the handwriting of the testatrix has been complied with.

"xxx xxx xxx

"As to the question of the testamentary capacity of the testatrix, (private

respondent) Clemente Sand himself has testi ed in Court that the testatrix was
completely in her sound mind when he visited her during her birthday celebration
in 1981, at or around which time the holographic will in question was executed by
the testatrix. To be of sound mind, it is su cient that the testatrix, at the time of
making the will, knew the value of the estate to be disposed of, the proper object
of her bounty, and the character of the testamentary act . . . The will itself shows
that the testatrix even had detailed knowledge of the nature of her estate. She
even identi ed the lot number and square meters of the lots she had conveyed by
will. The objects of her bounty were likewise identi ed explicitly. And considering
that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than su cient showing that
she knows the character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the allowance
of probate of the will submitted herein.

"Likewise, no evidence was presented to show su cient reason for the

disallowance of herein holographic will. While it was alleged that the said will was
procured by undue and improper pressure and in uence on the part of the
bene ciary or of some other person, the evidence adduced have not shown any
instance where improper pressure or in uence was exerted on the testatrix.
(Private respondent) Clemente Sand has testi ed that the testatrix was still alert
at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very
intelligent person and has a mind of her own. Her independence of character and
to some extent, her sense of superiority, which has been testi ed to in Court, all
show the unlikelihood of her being unduly in uenced or improperly pressured to
make the aforesaid will. It must be noted that the undue in uence or improper
pressure in question herein only refer to the making of a will and not as to the
speci c testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot nd convincing
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 reason for the disallowance of the will herein.

"Considering then that it is a well-established doctrine in the law on

succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were presented and
proven for the disallowance of the holographic will of the late Annie Sand, the
aforesaid will submitted herein must be admitted to probate." 3 (Emphasis
omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's
will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic
will are signed without being dated, and the last disposition has a signature and
date, such date validates the dispositions preceding it, whatever be the time of
prior dispositions."

"Article 814: In case of insertion, cancellation, erasure or alteration in a

holographic will, the testator must authenticate the same by his full signature."

It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations
made thereon had not been authenticated by decedent. llcd

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any
of the following cases:
"(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make

a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and in uence,

on the part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and
he did not intend that the instrument should be his will at the time of xing his
signature thereto."

In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;
(2 If the testator was insane, or otherwise mentally incapable of
making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the in uence of

fear, or threats;

(4) If it was procured by undue and improper pressure and in uence,

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 on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of a xing his signature
thereto."

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts
of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand
was not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed the
probate of said will. This is erroneous. cdrep

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws on
this subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be
disregarded."

For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and
806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
"A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed."
(Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
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 Likewise, a holographic will can still be admitted to probate, notwithstanding non-
compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA
237, 242 (1984), this Court held: cdrep

"Ordinarily, when a number of erasures, corrections, and interlineations

made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most only as
respects the particular words erased, corrected or interlined. Manresa gave an
identical commentary when he said 'la omision de la salvedad no anula el
testamento, segun la regla de jurisprudencia establecida en la sentencia de 4 de
Abril de 1895.'" 8 (Emphasis omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made

on the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 1 0 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814) separate
from that which provides for the necessary conditions for the validity of the holographic
will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They read as
follows:
"Article 678: A will is called holographic when the testator writes it himself
in the form and with the requisites required in Article 688.

"Article 688: Holographic wills may be executed only by persons of full age.

"In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the testator and
signed by him, and must contain a statement of the year, month and day of its
execution.

"If it should contain any erased, corrected, or interlined words, the testator
must identify them over his signature.

"Foreigners may execute holographic wills in their own language."

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in Articles 813
and 814 of the same Code — are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This
is correct and must be affirmed. LexLib

As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will. 1 1 In the case at bench, decedent herself indubitably stated in
her holographic will that the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its
entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the
whole property, which she shares with her father's other heirs.
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 IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs. LexLib

SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

Footnotes

1. Sixteenth Division, composed of Associate Justices Luis L. Victor (ponente), Ricardo J.

Francisco (chairman), and Pacita Canizares-Nye.

2. Presided by Judge Felimon H. Mendoza.

3. Rollo, pp. 37-39.

4. Impugned Decision, p. 5; Rollo, p. 46.

5. Pecson vs. Coronel, 45 Phil. 216 (1923); See 3 EDGARDO L. PARAS, Civil Code of the
Philippines Annotated (1989), pp. 145-146.

6. See Montanano vs. Suesa, 14 Phil. 676 (1909).

7. See Fernando vs. Villalon, 3 Phil. 386 (1904).
8. See Velasco vs. Lopez, 1 Phil. 720, 725 (1903), citing a Decision of the Supreme Court of
Spain, dated April 4, 1895; See also, 3 MANRESA, Commentarios al ARTURO M.
TOLENTINO, Commentaries & Jurisprudence on the Civil Code (1973), p. 107, citing
Castan 341, 5 Valverde 82; 3 AMBROSIO PADILLA, Civil Code Annotated (1987), pp. 157-
158; 2 RAMON C. AQUINO and CAROLINA C. GRIÑO-AQUINO (1990), p. 42.

9. 3 PARAS, op cit.

10. It must be noted, however, that in Kalaw, this Court laid down an exception to the
general rule, when it invalidated the entire will because of an unauthenticated erasure
made by the testator. In that case, the will had only one substantial provision. This was
altered by substituting the original heir with another, with such alteration being
unauthenticated. This Court held that the whole will was void "for the simple reason that
nothing remains in the Will after (the provision is invalidated) which could remain valid.
To state that the Will as first written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But, that change of mind can neither be given effect
because she failed to authenticate it in the manner required by law by affixing her full
signature."

11. Nepomuceno vs. Court of Appeals, 139 SCRA 206 (1985); See Nuguid vs. Nuguid, 17
SCRA 449 (1966); See also Cayetano vs. Leonidas, 129 SCRA 522 (1984).

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 FIRST DIVISION

[G.R. No. 38338. January 28, 1985.]

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS

AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, petitioners, vs. ANDRES R. DE JESUS, JR., respondent .

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

Ledesma, Guytingco, Velasco and Associates for Ledesa and A.R. de Jesus.

SYLLABUS

1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS;

DEPARTURE FROM STRICT STATUTORY REQUIREMENTS; LIBERAL TREND
FAVORED. — This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. We should
not overlook the liberal trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy.

2. ID.; ID.; ID.; PREVAILING POLICY. — Thus, the prevailing policy is to require
satisfaction of the legal requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano,
11 SCRA 422). If a Will has been executed in substantial compliance with the formalities of
the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said
Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). If the testator, in
executing his Will, attempts to comply with all the requisites, although compliance is not
literal, it is sufficient if the objective or purpose sought to be accomplished by such
requisite is actually attained by the form followed by the testator.

3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. — The

purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abangan, 40 Phil. 476, where we ruled that: "The object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity . . ." In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.

4. ID.; ID.; ID.; DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE

UNDER THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE. — We have carefully
reviewed the records of this case and found no evidence of bad faith and fraud in its
execution nor was there any substitution of Wills and Testaments. There is no question that
the holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated,
and signed by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the testatrix agree on
the genuineness of the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection interposed by the oppositor-
respondent Luz Henson is that the holographic Will is fatally defective because the date
"FEB./61" appearing on the holographic Will is not sufficient compliance with Article 810 of
the Civil Code. This objection is too technical to be entertained. As a general rule, the
"date" in a holographic Will should include the day, month, and year of its execution.
However, when as in the case at bar, there is no appearance of fraud, bad faith, undue
influence and pressure and the authenticity of the Will is established and the only issue is
whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance
with Article 810 of the Civil Code, probate of the holographic Will should be allowed under
the principle of substantial compliance.

DECISION

GUTIERREZ, JR., J : p

This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus.

The antecedent facts which led to the filing of this petition are undisputed.

After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de Jesus
and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of the
deceased Bibiana Roxas de Jesus.

On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After Letters
of Administration had been granted to the petitioner, he delivered to the lower court a
document purporting to be the holographic Will of the deceased Bibiana Roxas de Jesus.

On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Will on July 21, 1973. LLphil

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he found a
notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22, 23 and
24 thereof, a letter-will addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is dated "FEB./61"
and states: "This is my will which I want to be respected altho it is not written by a lawyer. .
."

The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas de
Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated "FEB./61" is
the holographic Will of their deceased mother, Bibiana R. de Jesus. Both recognized the
handwriting of their mother and positively identified her signature. They further testified that
their deceased mother understood English, the language in which the holographic Will is
written, and that the date "FEB./61" was the date when said Will was executed by their
mother.

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because — (a) it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted by
mistake and or did not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.

On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in accordance
with law.

Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as required
by Article 810 of the Civil Code. She contends that the law requires that the Will should
contain the day, month, and year of its execution and that this should be strictly complied
with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the order
reads:

"WHEREFORE, the document purporting to be the holographic Will of Bibiana

Roxas de Jesus, is hereby disallowed for not having been executed as required
by the law. The order of August 24, 1973 is hereby set aside."

The only issue is whether or not the date "FEB./61" appearing on the holographic Will of the
deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the Civil
Code which reads:

ART. 810. 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."

The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688 of
the Old Civil Code require the testator to state in his holographic Will the "year, month, and
day of its execution," the present Civil Code omitted the phrase "Año, mes y dia" and
simply requires that the holographic Will should be dated. The petitioners submit that the
liberal construction of the holographic Will should prevail. cdrep

Respondent Luz Henson on the other hand submits that the purported holographic Will is
void for non-compliance with Article 810 of the New Civil Code in that the date must contain
the year, month, and day of its execution. The respondent contends that Article 810 of the
Civil Code was patterned after Section 1277 of the California Code and Section 1588 of the
Louisiana Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the holographic Will
is invalid. The respondent further contends that the petitioner cannot plead liberal
construction of Article 810 of the Civil Code because statutes prescribing the formalities to
be observed in the execution of holographic Wills are strictly construed.

We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal application of
the statutory requirements regarding the due execution of Wills. We should not overlook the
liberal trend of the Civil Code in the manner of execution of Wills, the purpose of which, in
case of doubt is to prevent intestacy —

"The underlying and fundamental objectives permeating the provisions of the law
on wills in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in expressing
his last wishes, but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and
influence upon the testator.

"This objective is in accord with the modern tendency with respect to the
formalities in the execution of wills." (Report of the Code Commission, p. 103)

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27

SCRA 327) he emphasized that: LibLex

xxx xxx xxx

". . . The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is
better than that which the law can make. For this reason, intestate succession is
nothing more than a disposition based upon the presumed will of the decedent."

Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v.
Cartagena, 56 Phil. 282). Thus,

xxx xxx xxx

". . . More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances
point to a regular execution of the will, and the instrument appears to have been
executed substantially in accordance with the requirements of the law, the
inclination should, in the absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the document may suffer from
some imperfection of language, or other non-essential defect . . ." (Leynez v.
Leynez, 68 Phil. 745)
 If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.

The purpose of the solemnities surrounding the execution of Wills has been expounded by
this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled that:

"The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and
to guaranty their truth and authenticity . . ."

In particular, a complete date is required to provide against such contingencies as that

of two competing Wills executed on the same day, or of a testator becoming insane on
the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.

We have carefully reviewed the records of this case and found no evidence of bad faith and
fraud in its execution nor was there any substitution of Wills and Testaments. There is no
question that the holographic Will of the deceased Bibiana Roxas de Jesus was entirely
written, dated, and signed by the testatrix herself and in a language known to her. There is
also no question as to its genuineness and due execution. All the children of the testatrix
agree on the genuineness of the holographic Will of their mother and that she had the
testamentary capacity at the time of the execution of said Will. The objection interposed by
the oppositor-respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61" appearing on the holographic Will is not sufficient compliance
with Article 810 of the Civil Code. This objection is too technical to be entertained. cdphil

As a general rule, the "date" in a holographic Will should include the day, month, and year
of its execution. However, when as in the case at bar, there is no appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the Will is established and the
only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED
and SET ASIDE and the order allowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus is reinstated.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

 EN BANC

[G.R. No. 36342. October 8, 1932.]

Ir re Will of Francisco Varela Calderon, deceased. FRANCISCO

CARMELO VARELA, petitioner-appellee, vs. MIGUEL VARELA
CALDERON ET AL., opponents-appellants.

Araneta, De Joya, Zaragoza & Araneta for appellants.

Eduardo Gutierrez Repide for appellee.

SYLLABUS

1. WILLS; FRENCH HOLOGRAPHIC WILL, NOT INVALIDATED BY

ATTESTATION. — An attestation clause inserted in a holographic will, made and
executed in accordance with the French laws, does not in any way affect the essential
requisites prescribed for such kind of wills by said laws, and, consequently, does not
invalidate it nor destroy its character of a holographic will.
2. ID.; ID.; ID. — In the depositions made by three practising attorneys of
Paris, France, it has been emphatically asserted that the will in question did not lose its
holographic character by the addition to it of the superfluous attestation clause, and that
the will was allowable in accordance with the provisions of the French laws under which
it was made and executed. The clear and decisive provisions of article 970 of the
French Civil Code and the decisions of the French Court of Appeals cited by the
appellee, corroborate the aforementioned depositions.
3. ID.; ID.; ID. — It is unnecessary to consider and pass upon the other
grounds of the opposition, consisting in the incapacity of the three witnesses who signed
at the end of the attestation clause, and the absence of the requisites prescribed by the
French Civil Code for the execution of open wills, inasmuch as the attorney for the
appellee has conclusively proved that the will in question is holographic, and we have so
held and decided.

DECISION

IMPERIAL, J :p

This is an appeal taken by Miguel Varela Calderon, Angel Varela Calderon, Jesus
Varela Calderon, Trinidad Varela Calderon, Paula Varela Calderon, Pilar Varela
Calderon and Maria Varela Calderon from the judgment rendered by the Honorable
Mariano A. Albert, Judge of the Court of First Instance of Manila, ordering the allowance
and probate of the document marked Exhibit B as the last will and testament of the late
Francisco Varela Calderon.
 The deceased, a physician by profession, was a Filipino citizen resident of the
City of Manila where he owned real properties assessed at P188,017.81. He traveled
abroad for his health and temporarily resided in Hendaye-Plage, France. Not feeling
very well, but in the full enjoyment of his mental faculties, he decided to make his last
will and testament (Exhibit B), on April 14, 1930, in Paris, France, with the assistance of
attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd. Sometime later,
that is on July 15, 1930, he died in the Grand-Hotel de Leysin Sanatorium in
Switzerland.
On September 20, 1930, the herein petitioner-appellee, Francisco Carmelo
Varela, filed a petition in the Court of First Instance of the City of Manila, praying that
said will be admitted to probate. Said petition was opposed by the deceased's brothers
Jose, Miguel, Angel, Jesus, Trinidad, Paula, Pilar and Maria, surnamed Varela
Calderon, although, later on, the first mentioned opponent withdrew his opposition giving
as his reason therefor that it was out of respect for the testator's wishes because the
will was executed in his own handwriting. The grounds of the opposition are as follows:
(a) That the will sought to be probated was not holographic in character and did not
comply with the requisites prescribed by article 970 of the French Civil Code; (b) that
the witnesses to the will did not possess the qualifications required by article 980 of the
French Civil Code; (c) that for not having complied with the requisites prescribed by the
French law, said will is null and void; (d ) that neither has it the character of an open will,
not having been executed in accordance with article 1001 of the French Civil Code; and
(e) that the provisions of article 1007 of the same Code relative to the recording of wills
were not complied with in connection with the will in question.
The appellants assign the following errors alleged to have been committed by the
trial court:
"1. The trial court erred in declaring that Exhibit B, purporting to be the
last will and testament of the deceased Francisco Varela Calderon, was a valid
holographic will made and executed, in accordance with the laws of the French
Republic.
"2. The trial court, therefore, erred in allowing and admitting to probate
said document Exhibit B, as the last will and testament of the deceased Francisco
Varela Calderon."
In view of the nature of both assignments of error and of the arguments advanced
in their support, we shall discuss them jointly.
The will in question, Exhibit B, as translated into English reads as follows:
"I. FRANCISCO VARELA CALDERON, Doctor in Medicine, bachelor,
citizen of the Philippine Islands and subject of the United States of America,
borne and domiciled at Manila, Philippine Islands, and actually residing
temporarily at Hendaye-Plage, France, I declare that the following are my act of
last wills and my testament:
"1. I revoke all testamentary dispositions made by myself before this
day.
"2. I desire that the inhumation of my body be made without any
ceremony.
"3. I give and dequeath to my children FRANCISCO CARMELO
VARELA borne at Madrid on the twenty fourth of November nineteen hundred five
 and to CARMEN VARELA borne at Manila, Philippine Islands, on the fourth of
October nineteen hundred seven who live both actually with me, the totality of my
personal properties, real estates and mixed including those on which I could have
the power of disposition or designation whatsoever, by equal parts in all
properties, instituting them my residuary legatee.
"4. I name for my testamentary executor, without bail, my son,
FRANCISCO CARMELO VARELA, to his default my daughter CARMEN
VARELA, to the default of this one my brother MIGUEL VARELA CALDERON
and to the default of my brother, Mr. ANTONIO GUTIERREZ DEL OCAMPO.
"In witness whereof I have in this one my act of last wills and testament,
written dated and signed entirely by my hand, applied my signature and my seal
at Paris, this fourteenth of April nineteen hundred thirty.
(Sgd.) "FRANCISCO VARELA CALDERON (L.S.)
In margin: ANNEXE A
(Sgd.) "HENRI GADD
(Sgd.) "TH. PEYROT
"Signed, sealed, published and declared by the testator above mentioned,
FRANCISCO VARELA CALDERON, on the 14 April 1930, as being his act of last
wills and his presence, and in the presence, and in the presence of one another,
have to these presents applied our signatures as witnesses:
(Sgd.) "F. DE ROUSSY DE SALES,
39 rue la Boetie, Paris.
(Sgd.) "GETHING C. MILLER,
39 rue la Boetie, Paris, France.
(Sgd.) "HENRI GADD,
39 rue la Boetie, Paris, France.
"Pour traduction certifiee conforme.
"Manile, le 15 september 1930."
The original will was executed in the French language and had been written, dated
and signed by the testator with his own hand, with the exception of the attestation
clause which appears at the bottom of the document. This fact is proved by the
testimony of the appellee and his other witnesses, including the depositions, and is
admitted by the appellants.
The petition for the allowance and probate of said will is based on the provisions
of article 970 of the French Civil Code which considers as a holographic will that which
is made or executed, dated and signed by the testator in his own handwriting without the
necessity of any other formality, and on section 635 of the Code of the Civil Procedure
in force in this jurisdiction which provides that a will made out of the Philippine Islands
in accordance with the laws in force in the country in which it was made and which may
be allowed and admitted to probate therein, may, also be proved, allowed and recorded
in the Philippine Islands in the same manner and with the same effect as if executed in
the latter country. Both provisions of law literally copied from the English text, read as
follows:
"(Article 970, French Civil Code)
 "A holographic will is not valid unless it is entirely written, dated, and
signed by the testator. No other formality is required.
"(Article 635, Code of Civil Procedure)
"Will made out of the Philippine Islands. — A will made out of the
Philippine Islands which might be proved and allowed by the laws of the state or
country in which it was made, may be proved, allowed, and recorded in the
Philippine Islands, and shall have the same effect as if executed according to the
laws of these Islands."
As we have already said, it is an admitted fact that the will was written, dated and
signed by the deceased testator, for which reason, there is no doubt that it had been
made and executed in accordance with article 970 of the French Civil Code were it not
for the attestation clause which appears at the bottom of the document.
The appellants contend that the addition of said clause has entirely vitiated the
will, because it ceased to be a holographic will, neither does it possess the requisites of
a public or open will in accordance with the French law. The court which originally took
cognizance of the case decided that such circumstance does not invalidate the will. We
concur in said opinion and hold that a clause drawn up in such manner is superfluous
and does not affect in any way the essential requisites prescribed for holographic wills
by the French law, and, consequently, it has not invalidated the will nor deprived it of its
holographic character. In reaching this conclusion, we base our opinion not only on the
clear and conclusive provisions of article 970 of the French Civil Code and on the
decisions of the French Court of Appeals cited in the appellee's brief, but principally on
the fact established in the depositions made by practicing attorneys F. de Roussy de
Sales, Gething C. Miller and Henri Gadd of Paris, France, who emphatically declared
that the will in question did not lose its holographic character by the addition of the
aforementioned attestation clause and that it may be allowed to probate in conformity
with the French laws under which it had been made and executed.
In view of the foregoing, we believe it unnecessary to consider and pass upon the
other grounds invoked by the opposition consisting in the incapacity of the three
witnesses who signed at the end of the attestation clause and the absence of the
requisites prescribed by the French Civil Code for the execution of open wills, inasmuch
as the attorney for the appellee has conclusively proved that the will in question is
holographic, and we have so held and decided.
The order appealed from, being in conformity with the law, is hereby affirmed in
toto, with costs against the appellants. So ordered.
Avanceña, C.J., Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos, Hull,
Vickers, and Butte, JJ., concur.
 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. Balderrama, Crispín D. Baizas and Roberto H. Benitez for

appellant.

Arturo M. Tolentino for appellee.

SYLLABUS

1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS

OF WILL, HOW PROVED. — The execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented; otherwise, it shall produce no
effect. The law regards the document itself as material proof of authenticity.

DECISION

BENGZON, J : p

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 these 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 pagiisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking
ipinamamana sa aking mga kamaganakang 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 pang lugar ay
aking ipinamamana sa aking asawang si Ildefonso 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
pañgalang Felicidad Esguerra-Alto. At kung ito ay may kakulañgan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.'
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San
Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due
execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro
Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her
first cousin, Vicente Esguerra, her desire to make a will. She confided however that it
would be useless if her husband discovered or knew about it. Vicente consulted with
Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations.
The latter replied it could be done without any witness, provided the document was
entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in
transmitting the information, and on the strength of it, in the morning of November 5,
1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a
holographic will substantially of the tenor above transcribed, in the presence of her
niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon
of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed
him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for
her last illness, she entrusted the said will, which was contained in a purse, to Felina
Esguerra. But a few hours later, Ildefonso Yap, her husband, asked Felina for the purse;
and being afraid of him by reason of his well-known violent temper, she- delivered it to
him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to
demand it the next day shortly before the death of Felicidad. Again, Felina handed it to
him but not before she had taken the purse to the toilet, opened it and read the will for
the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering
from heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks she
was treated for the disease; that thereafter she felt well and after visiting interesting
places, the couple returned to this country in August 1950. However, her ailment
recurred, she suffered several attacks, the most serious of which happened in the early
morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the
lower floors and owned 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 permited 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 authenticity
(Abangan vs. Abangan, 40 Phil., 476) and to avoid that 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. Ist Supp. No. 3 p. 194.).
Authenticity and due execution is the dominant requirement 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 of 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 authenticity
3 — 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
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 stolen 4 — 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 llenaron 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
su adveracion y protocolizacion; y como consecuencia ineludible de ello, forzoso
es affirmar que el de autos carece de validez y aficacia , por no estar firmado 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 Vl 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 lend themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the
will.

Whereas in the case of holographic wills, if oral testimony were admissible 9 only
one man could engineer the whole 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." (Seaevola, Codigo Civil, Tomo 12, p. 348.).

4. V. Sanchez Roman, 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.

7. We 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. Even a

mimeographed or carbon copy; or by other similar means, if any, whereby the
authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court.

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 in case of persons who have written
very little. 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.

 FIRST DIVISION

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

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

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

Luciano A. Joson for petitioner-appellant.

Cesar C. Paralejo for oppositor-appellee.

SYNOPSIS

The probate court ordered the dismissal of appellant's petition for the
allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that
the alleged photostatic copy of the will which was presented for probate, cannot
stand in lieu of the lost original, for the law regards the document itself as the
material proof of the authenticity of the said will, citing the case of Gan vs. Yap,
104 Phil. 509, 522. On appeal, the only question is whether a holographic will which
was lost or cannot be found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's order of dismissal,
held that a photostatic or xerox copy of a lost or destroyed holographic will may be
admitted because the authenticity of the handwriting of the deceased can he
determined by the probate court, as comparison can be made with the standard
writings of the testator.
Assailed order of dismissal, set aside.

SYLLABUS

1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE

THEREOF; DEFINITION. — Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the Court after its due execution has
been proved.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. — The probate
of holographic wills may be uncontested or not. If uncontested, at least one identifying
witness is required and, if no witness is available, experts may be resorted to. If
contested, at least three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN
LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. — If the
holographic will has been lost or destroyed and no other copy is available, the will
cannot be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample
 handwritten statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE
ALLOWED; CASE AT BAR. — A photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution
and the contents of a lost or destroyed holographic will may not be proved by the bare
testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps
it may be proved by a photographic or photostatic copy. Even a mimeographed or
carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court."
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.

DECISION

RELOVA, J : p

This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant filed a petition with the Court of
First Instance of Rizal for the probate of the holographic will of Ricardo B.
Bonilla and the issuance of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
"(1) Appellant was estopped from claiming that the deceased left
a will by failing to produce the will within twenty days of the death of the
testator as required by Rule 75, section 2 of the Rules of Court:
"(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not intended to take
effect after death, and therefore it was not a will;
"(3) The alleged holographic will itself, and not an alleged copy
thereof, must be produced, otherwise it would produce no effect, as held in
Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
"The appellees likewise moved for the consolidation of the case with
another case (Sp. Proc. No. 8275). Their motion was granted by the court in
an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will.
 They argued that:
"(1) The alleged holographic was not a last will but merely an
instruction as to the management and improvement of the schools and
colleges founded by decedent Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by
secondary evidence unlike ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was denied
by the court in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground
that the order was contrary to law and settled pronouncements and rulings of
the Supreme Court, to which the appellant in turn filed an opposition. On
July 23, 1979, the court set aside its order of February 23, 1979 and
dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
'. . . It is our considered opinion that once the original copy of
the holographic will is lost, a copy thereof cannot stand in lieu of the
original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme
Court held that 'in the matter of holographic wills the law, it is
reasonable to suppose, regards the document itself as the material
proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged holographic
will was executed on January 25, 1962 while Ricardo B. Bonilla died
on May 13, 1976. In view of the lapse of more than 14 years from the
time of the execution of the will to the death of the decedent, the fact
that the original of the will could not be located shows to our mind that
the decedent had discarded before his death his allegedly missing
Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the trial
court committed the following assigned errors:
"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING
HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING
APPELLANT'S WILL."
The only question here is whether a holographic will which was lost or can
not be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will by the
court after its due execution has been proved. The probate may be uncontested or
not. If uncontested, at least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen and/or read such will.
The will itself must be presented; otherwise, it shall produce no effect. The law
regards the document itself as material proof of authenticity." But, in Footnote 8 of
said decision, it says that "Perhaps it may be proved by a photographic or
photostatic copy. Even a mimeographed or carbon copy; or by other similar
means, if any, whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court." Evidently, the photostatic or xerox
copy of the lost or destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be determined by the probate
court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order dated
July 23, 1979, dismissing her petition to approve the will of the late Ricardo B.
Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez,
Jr., JJ., concur.
 SECOND DIVISION

[G.R. No. L-14003. August 5, 1960.]

FEDERICO AZAOLA, petitioner-appellant , vs. CESARIO SINGSON,

oppositor-appellee.

F. Lavides and L. B. Alcuaz for appellant.

Vicente J. Cuna and P. S. Singson for appellee.

SYLLABUS

1. WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF;

REQUISITE AS TO NUMBER OF WITNESSES. — Since the authenticity of the
holographic will was not contested, proponent was not required to produce more than
one witness; but even if the genuineness of the holographic will were contested, Article
811 of our present Civil Code cannot be interpreted as 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, it becomes obvious that the existence
of witnesses possessing the requisite qualifications is a matter beyond the control of the
proponent.
2. ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE.
— Where the will is holographic, no witness need be present and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results are
to be avoided.
3. ID.; RESORT TO EXPERT EVIDENCE. — Under Article 811, the resort to
expert evidence is conditioned by the words "if the Court deem it necessary", which
reveals that what the law deems essential is that the Court should be convinced of the
will's authenticity.

DECISION

REYES, J. B. L., J :p

This appeal, taken on points of law from a decision rendered on 15 January 1958
by the Court of First Instance of Quezon City in its Special Proceedings No. Q-2640,
involves the determination of the quantity of evidence required for the probate of a
holographic will.

The established facts are thus summarized in the decision appealed from (Rec.
App. pp. 22-24):
 "Briefly speaking, the following facts were established by the petitioner;
that on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot,
Quezon City, known to be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was made the sole heir
as against the nephew of the deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; that
the witness testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special power of attorney
(Exh. F), and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an affidavit (Exh. G-2), and that there were further
exhibited in court two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid documentary evidence is
in the handwriting of the testatrix as well as the signatures appearing therein are
the signatures of the testatrix; that said witness, in answer to a question of his
counsel admitted that the holographic will was handed to him by the testatrix,
"apparently it must have been written by her" (t.s.n., p. 11). However, on page 16
on the same transcript of the stenographic notes, when the same witness was
asked by counsel if he was familiar with the penmanship and handwriting of the
deceased Fortunata Vda. de Yance, he answered positively in the affirmative and
when he was asked again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers (testatrix'), he
answered, "I would definitely say it is hers"; that it was also established in the
proceedings that the assessed value of the property of the deceased in Luskot,
Quezon City, is in the amount of P7,000.00."
The opposition to the probate was 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 by the proponent "did not prove sufficiently that the body of
the will was written in the handwriting of the testatrix."
The proponent 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.
Article 811 of the Civil Code of the Philippines is to the following effect:
"ART. 811. 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.
 In the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be resorted
to. (691a)"
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if the
genuineness of the holographic will were contested, we are of the opinion that Article
811 of our present Civil Code can not be interpreted as 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 witnesses 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 acquainted with 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. That is
evidently the reason why the second paragraph of Article 811 prescribes that —
"in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be resorted
to."
As can be seen, 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.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived from the
rule established for ordinary testaments (cf. Cabang vs. Delfinado, 45 Phil., 291;
Tolentino vs. Francisco, 57 Phil. 742). But it can not be ignored that the requirement can
be considered mandatory only in the case of ordinary testaments, precisely because the
presence of at least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no witness need be
present (Art. 10), and the rule requiring production of three witnesses must be deemed
merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that 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.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of
1889, the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely
remarks:
"La manera como está concebida la redacción del último apartado de
dicho precepto induce la conclusión de que siempre o por lo menos, en la mayor
parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre
acerca de la autenticidad del testamento ológrafo, aunque ya estén insertas en
los autos del expediente las declaraciones testificales. La prudencia con que el
Juez debe de proceder en resoluciones de transcendencia así lo exige, y la
índole delicada y peligrosa del testamento ológrafo lo hace necesario para mayor
garantía de todos los intereses comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una comfirmación
facultativa del dicho profano de los testigos y un modo de desvanecer las ultimas
dudas que pudieran ocurrir al Juez acerca de la autenticidad que trata de
averiguar y declarar. Para eso se ha escrito la frase del citado último apartado,
(siempre que el Juez lo estime conveniente), haya habido o no testigos y
dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de
los sucesos y de su significación, para responder debidamente de las
resoluciones que haya de dictar."
And because the law leaves it to the trial court to decide if experts are still
needed, no unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the testimony of the
lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be better
served, in our opinion, by giving the parties ample opportunity to adduce additional
evidence, including expert witnesses, should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the records
ordered remanded to the Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on record shall not be retaken. No
costs.
Bengzon, Padilla, Bautista Angelo, Labrador, Concepción, Barrera, and Gutiérrez
David, JJ., concur.
 FIRST DIVISION

[G.R. No. 123486. August 12, 1999.]

RAMONAL petitioners, vs.

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL,
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and EUFEMIA
PATIGAS respondents.
PATIGAS,

Amadeo D. Seno for petitioners.

Roderico C. Villaroya for private respondents.

SYNOPSIS

On April 6, 1990, respondents Evangeline Calugay, Josephine Salcedo and Eufemia

Patigas, being the devisees and legatees of the holographic will of the deceased Matilde
Seño Vda. De Ramonal, led with the Regional Trial Court, Branch 18, Misamis Oriental, a
petition for probate of the said holographic will. On the other hand, petitioners Eugenia
Ramonal Codoy and Manuel Ramonal led an opposition thereto, alleging that the
holographic will was a forgery and that the same was even illegible which gives an
impression that a "third hand" of an interested party other than the true hand of Matilde
Seno Vda. De Ramonal executed the holographic will. At the hearing, respondents
presented six ordinary witnesses and various documentary evidence. Petitioners, instead
of presenting their evidence, led a demurrer to evidence which the trial court granted.
Respondents appealed, and in support thereof, they once again reiterated the testimony of
their ordinary witnesses who testi ed as to the similarity, authenticity genuiness of the
signature of the deceased in the holographic will. On October 9, 1995, the Court of Appeals
rendered a decision which ruled that the appeal was meritorious. TIAEac

Hence, this petition.

The Court ruled that from a visual examination of the holographic will the strokes are
different when compared with other documents written by the testator. The signature of
the testator in some of the disposition was not readable. There were uneven strokes,
retracing and erasures on the will. Comparing the signature in the holographic will dated
August 30, 1978, and the signatures in several documents such as the application letter
for pasture permit dated December 30, 1980, and a letter dated June 16, 1978, the strokes
were different. In the letters, there were continuous ows of the strokes, evidencing that
there was no hesitation in writing unlike that of the holographic will. The Court, therefore,
ruled that it cannot be certain that the holographic will was in the handwriting of the
deceased.
The decision appealed from was SET ASIDE. The records were ordered remanded to
the court of origin with instructions to allow petitioners to adduce evidence in support of
their opposition.

SYLLABUS

1. CIVIL LAW; SUCCESSION; PROBATE OF HOLOGRAPHIC WILL; THREE

WITNESSES REQUIRED FOR A CONTESTED HOLOGRAPHIC WILL IS MANDATORY. — In this
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 petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are
permissive or mandatory. The article provides, as a requirement for the probate of a
contested holographic will, that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the testator. We are convinced, based on
the language used, that Article 811 of the Civil Code is mandatory. The word "shall" in a
statute commonly denotes 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.
2. ID.; ID.; ID.; ID.; PURPOSE; TO ELIMINATE POSSIBILITY OF FALSE DOCUMENT
BEING ADJUDGED AS WILL OF TESTATOR. — In the case of Ajero vs. Court of Appeals, we
said that "the object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail
the exercise of the right to make a will." 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, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.
3. ID.; ID.; ID.; PURPOSE; TO GIVE EFFECT TO THE WISHES OF THE DECEASED.
— Laws are enacted to achieve a goal intended and to guide against an evil or mischief that
they aim to prevent. In the case at bar, the goal to achieve 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.
4. ID.; ID.; ID.; HANDWRITING OF DECEASED IN HOLOGRAPHIC WILL CANNOT
BE ASCERTAINED; CASE AT BAR. — A visual examination of the holographic will convince
us that the strokes are different when compared with other documents written by the
testator. The signature of the testator in some of the disposition is not readable. There
were uneven strokes, retracing and erasures on the will. Comparing the signatures in the
holographic will dated August 30, 1978, and the signatures in several documents such as
the application letter for pasture permit dated December 30, 1980, and a letter dated June
16, 1978, the strokes are different. In the letters, there are continuous ows of the strokes,
evidencing that there is no hesitation in writing unlike that of the holographic will. We,
therefore, cannot be certain that the holographic will was in the handwriting by the
deceased. IHAcCS

DECISION

PARDO , J : p

Before us is a petition for review on certiorari of the decision of the Court of Appeals
1 and its resolution denying reconsideration, ruling:

"Upon the unrebutted testimony of appellant Evangeline Calugay and

witness Matilde Ramonal Binanay, the authenticity of testators holographic will
has been established and the handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the judgment appealed from and the
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 probate of the holographic will in question be called for. The rule is that after
plaintiff has completed presentation of his evidence and the defendant les a
motion for judgment on demurrer to evidence on the ground that upon the facts
and the law plaintiff has shown no right to relief, if the motion is granted and the
order to dismissal is reversed on appeal, the movant loses his right to present
evidence in his behalf (Sec. 1 Rule 35 Revised Rules of Court). Judgment may,
therefore, be rendered for appellant in the instant case.
LLpr

"Wherefore, the order appealed from is REVERSED and judgment rendered

allowing the probate of the holographic will of the testator Matilde Seño Vda. de
Ramonal." 2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de
Ramonal, led with the Regional Trial Court, Misamis Oriental, Branch 18, a petition 3 for
probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August 30,
1978, that there was no fraud, undue in uence, and duress employed in the person of the
testator, and the will was written voluntarily.
The assessed value of the decedent's property, including all real and personal
property was about P400,000.00, at the time of her death. 4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal led an opposition
5 to the petition for probate, alleging that the holographic will was a forgery and that the
same is even illegible. This gives an impression that a "third hand" of an interested party
other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.
Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who executed
the will, and was not forced, the dates and the signature should appear at the bottom after
the dispositions, as regularly done and not after every disposition. And assuming that the
holographic will is in the handwriting of the deceased, it was procured by undue and
improper pressure and in uence on the part of the bene ciaries, or through fraud and
trickery. LLphil

Respondents presented six (6) witnesses and various documentary evidence.

Petitioners instead of presenting their evidence, led a demurrer 6 to evidence, claiming
that respondents failed to establish su cient factual and legal basis for the probate of the
holographic will of the deceased Matilde Seño Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
"WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for probate of
the document (Exhibit "S") on the purported Holographic Will of the late Matilde
Seño Vda. de Ramonal, is denied for insu ciency of evidence and lack of merits."
7

On December 12, 1990, respondents led a notice of appeal, 8 and in support of

their appeal, the respondents once again reiterated the testimony of the following
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 witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4)
Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite an
account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the
special proceedings for the probate of the holographic will of the deceased was led. He
produced and identi ed the records of the case. The documents presented bear the
signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the
basis for comparison of the handwriting of the testatrix, with the writing treated or
admitted as genuine by the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voter's a davit of the decedent. However, the voters' a davit was not
produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testi ed that the deceased Matilde Seño Vda. de Ramonal
was her aunt, and that after the death of Matilde's husband, the latter lived with her in her
parent's house for eleven (11) years, from 1958 to 1969. During those eleven (11) years of
close association with the deceased, she acquired familiarity with her signature and
handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in
collecting rentals from her various tenants of commercial buildings, and the deceased
always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the
deceased in posting the records of the accounts, and carried personal letters of the
deceased to her creditors. LibLex

Matilde Ramonal Binanay further testi ed that at the time of the death of Matilde
Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally
and entirely written, dated and signed, by the deceased and that all the dispositions
therein, the dates, and the signatures in said will, were that of the deceased.
Fiscal Rodolfo Waga testi ed that before he was appointed City Fiscal of Cagayan
de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by
the deceased in connection with the intestate proceedings of her late husband, as a result
of which he is familiar with the handwriting of the latter. He testi ed that the signature
appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. de
Ramonal, but he can not be sure.
The fth witness presented was Mrs. Teresita Vedad , an employee of the
Department of Environment and Natural Resources, Region 10. She testi ed that she
processed the application of the deceased for pasture permit and was familiar with the
signature of the deceased, since the deceased signed documents in her presence, when
the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testi ed that she had lived with
the deceased since birth, and was in fact adopted by the latter. That after a long period of
time she became familiar with the signature of the deceased. She testi ed that the
signature appearing in the holographic will is the true and genuine signature of Matilde
Seño Vda. de Ramonal. LLphil

The holographic will which was written in Visayan, is translated in English as follows:
"Instruction
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 "August 30, 1978

"1. My share at Cogon, Raminal Street, for Evangeline Calugay.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"2. Jose na Salcedo must be given 1,500 square meters at Pinikitan

Street.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"3. My jewelry's shall be divided among:

"1. Eufemia Patigas

"2. Josefina Salcedo

"3. Evangeline Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"4. I bequeath my one (1) hectare land at Mandumol, Indahag to

Evangeline R. Calugay

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor
of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no
longer around.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"6. Bury me where my husband Justo is ever buried.

"(Sgd) Matilde Vda de Ramonal

"August 30, 1978

"Gene and Manuel:

"Follow my instruction in order that I will rest peacefully.

"Mama

"Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
". . . even if the genuineness of the holographic will were contested, we are
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 of the opinion that Article 811 of our present civil code can not be interpreted as
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 the holographic will, none
being required by law (art. 810, new civil code), it becomes obvious that the
existence of witnesses possessing the requisite quali cations is a matter beyond
the control of the proponent. For it is not merely a question of nding 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 express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness acquainted with
the testator's hand; or even if so familiarized, the witness may be unwilling to give
a positive opinion. Compliance with the rule of paragraph 1 of article 811 may
thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that —

"in the absence of any competent witness referred to in the preceding

paragraph, and if the court deems it necessary, expert testimony may be resorted
to."

"As can be seen, the law foresees the possibility that no quali ed 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. Cdpr

"It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was derived
from the rule established for ordinary testaments (CF Cabang vs. Del nado , 45
PHIL 291; Tolentino v. Francisco , 57 PHIL 742). But it can not be ignored that the
requirement can be considered mandatory only in case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of
ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (art. 10), and the rule requiring
production of three witnesses must be deemed merely permissive if absurd
results are to be avoided.
"Again, under Art. 811, the resort to expert evidence is conditioned by the
words "if the court deem it necessary", which reveal that 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 ne, 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.

"Paraphrasing Azaola vs. Singson, even if the genuineness of the

holographic will were contested, Article 811 of the civil code cannot be interpreted
as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate denied. No
witness need be present in the execution of the holographic will. And the rule
requiring the production of three witnesses is merely permissive. What the law
deems essential is that the court is convinced of the authenticity of the will. Its
duty is to exhaust all available lines of inquiry, for the state is as much interested
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 in the proponent that the true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to offer expert evidence,
until and unless the court expresses dissatisfaction with the testimony of the lay
witnesses. 1 0

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay

and other witnesses de nitely and in no uncertain terms testi ed that the handwriting and
signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the
holographic will and the handwriting and signature therein, and allowed the will to probate.
LLjur

Hence, this petition.

The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to prove that the
date, text, and signature on the holographic will were written entirely in the
hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures
in the holographic will of Matilde Seño Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil
Code are permissive or mandatory. The article provides, as a requirement for the probate
of a contested holographic will, that at least three witnesses explicitly declare that the
signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code is
mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a
statute commonly denotes 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." 1 1
Laws are enacted to achieve a goal intended and to guide against an evil or mischief
that aims to prevent. In the case at bar, the goal to achieve 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.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased. An exhaustive and objective consideration of
the evidence is imperative to establish the true intent of the testator. LLpr

It will be noted that not all the witnesses presented by the respondents testi ed
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identi ed
the record of Special Proceedings No. 427 before said court. He was not presented to
declare explicitly that the signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to
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 identify the signature of the deceased in the voters' a davit, which was not even produced
as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court
what was your occupation or how did Matilde Vda de Ramonal keep
herself busy that time?

A. Collecting rentals.

Q. From where?

A. From the land rentals and commercial buildings at Pabayo-Gomez streets.

12

xxx xxx xxx

Q. Who sometime accompany her?

A. I sometimes accompany her.

Q. In collecting rentals does she issue receipts?

A. Yes, sir. 13

xxx xxx xxx

Q. Showing to you the receipt dated 23 October 1979, is this the one you are
referring to as one of the receipts which she issued to them?

A. Yes, sir.

Q. Now there is that signature of Matilde vda. De Ramonal, whose signature

is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?

A. Yes, sir.

Q. Why do you say so?

A. Because we sometimes post a record of accounts in behalf of Matilde Vda.

De Ramonal.

Q. How is this record of accounts made? How is this reflected?

A. In handwritten. 1 4

xxx xxx xxx

Q. In addition to collection of rentals, posting records of accounts of tenants

and deed of sale which you said what else did you do to acquire familiarity
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 of the signature of Matilde Vda De Ramonal? prcd

A. Posting records.

Q. Aside from that?

A. Carrying letters.

Q. Letters of whom?

A. Matilde

Q. To whom?

A. To her creditors. 15

xxx xxx xxx

Q. You testi ed that at the time of her death she left a will. I am showing to
you a document with its title "tugon" is this the document you are referring
to?

A. Yes, sir.

Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this?
A. My aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature. 1 6
What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note. Cdpr

Further, during the cross-examination, the counsel for petitioners elicited the fact
that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
late Matilde Seno vda de Ramonal left a will you said, yes?

A. Yes, sir.

Q. Who was in possession of that will?

A. I.

Q. Since when did you have the possession of the will?

A. It was in my mother's possession.

Q. So, it was not in your possession?

A. Sorry, yes.

Q. And when did you come into possession since as you said this was
originally in the possession of your mother?

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 A. 1985. 17

xxx xxx xxx

Q. Now, Mrs. Binanay was there any particular reason why your mother left
that will to you and therefore you have that in your possession?

A. It was not given to me by my mother, I took that in the aparador when she
died.

Q. After taking that document you kept it with you?

A. I presented it to the fiscal.

Q. For what purpose?

A. Just to seek advice.

Q. Advice of what?

A. About the will. 1 8

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in issue
her motive of keeping the will a secret to petitioners and revealing it only after the death of
Matilde Seño Vda. de Ramonal. cdphil

In the testimony of Ms. Binanay, the following were established:

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is
that correct?

A. Yes, sir.

Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?

A. Yes, sir. 19

xxx xxx xxx

Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that
there are retracings in the word Vda.?

A. Yes, a little. The letter L is continuous.

Q. And also in Matilde the letter L is continued to letter D?

A. Yes, sir.

Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde
is continued towards letter D.

A. Yes, sir.

Q. And there is a retracing in the word Vda.?

A. Yes, sir. 20

xxx xxx xxx

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 Q. Now, that was 1979, remember one year after the alleged holographic will.
Now, you identified a document marked as Exhibit R. This is dated January
8, 1978 which is only about eight months from August 30, 1978. Do you
notice that the signature Matilde Vda de Ramonal is beautifully written and
legible?

A. Yes, sir the handwriting shows that she was very exhausted.

Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was
exhausted? LexLib

A. In writing.

Q. How did you know that she was exhausted when you were not present and
you just tried to explain yourself out because of the apparent
inconsistencies?

A. That was I think. (sic)

Q. Now, you already observed this signature dated 1978, the same year as the
alleged holographic will. In exhibit I, you will notice that there is no
retracing; there is no hesitancy and the signature was written on a uid
movement. . . . And in fact, the name Eufemia R. Patigas here refers to one
of the petitioners?

A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but
in the handwriting themselves, here you will notice the hesitancy and
tremors, do you notice that?

A. Yes, sir. 21

Evangeline Calugay declared that the holographic will was written, dated and signed
in the handwriting of the testator. She testified that:
Q. You testi ed that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to the market and then
to her transactions.

Q. What else? What services that you rendered?

A. After my college days I assisted her in going to the bank, paying taxes and
to her lawyer.
Q. What was your purpose of going to her lawyer?

A. I used to be her personal driver.

Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.

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 Q. How come that you acquired familiarity?
A. Because I lived with her since birth. 2 2

xxx xxx xxx

Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated
Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this? cdtai

A. Yes, sir, that is her signature.

Q. Why do you say that is her signature?

A. I am familiar with her signature. 23

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?

A. The late husband is Justo Ramonal. 24

xxx xxx xxx

Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
A. As far as I know they have no legitimate children. 25

xxx xxx xxx

Q. You said after becoming a lawyer you practice your profession? Where?

A. Here in Cagayan de Oro City.

Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.

Q. When you said assisted, you acted as her counsel? Any sort of counsel as
in what case is that, Fiscal?

A. It is about the project partition to terminate the property, which was under
the court before. 2 6
xxx xxx xxx

Q. Appearing in special proceeding no. 427 is the amended inventory which is

marked as exhibit N of the estate of Justo Ramonal and there appears a
signature over the type written word Matilde vda de Ramonal, whose
signature is this? LLphil

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 A. That is the signature of Matilde Vda de Ramonal.

Q. Also in exhibit n-3, whose signature is this?

A. This one here that is the signature of Mrs. Matilde vda de Ramonal. 27

xxx xxx xxx

Q. Aside from attending as counsel in that Special Proceeding Case No. 427
what were the other assistance wherein you were rendering professional
service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall. 28
xxx xxx xxx

Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over

this document, Fiscal Waga and tell the court whether you are familiar with
the handwriting contained in that document marked as exhibit "S"?

A. I am not familiar with the handwriting.

Q. This one, Matilde Vda de Ramonal, whose signature is this?

A. I think this signature here it seems to be the signature of Mrs. Matilde vda
de Ramonal.

Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal,
can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.

Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you
tell the court whose signature is that?

A. As I said, this signature also seems to be the signature of Matilde vda de

Ramonal. LLjur

Q. Why do you say that?

A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar. 29
xxx xxx xxx

Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of
Matilde vda de Ramonal?

A. Yes, it is similar to the project of partition.

Q. So you are not de nite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you
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 have made?
A. That is true. 3 0
From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, 3 1 ruling that the requirement is
merely directory and not mandatory. LLpr

In the case of Ajero vs. Court of Appeals, 3 2 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the
fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will."
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, that law requires
three witnesses to declare that the will was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with one of
the respondents, who kept it even before the death of the deceased. In the testimony of
Ms. Binanay, she revealed that the will was in her possession as early as 1985, or ve years
before the death of the deceased. LexLib

There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her during her
lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay
when the lawyer of petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will and she is not a
handwriting expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The signature of
the testator in some of the disposition is not readable. There were uneven strokes,
retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, 3 3 and the
signatures in several documents such as the application letter for pasture permit dated
December 30, 1980, 3 4 and a letter dated June 16, 1978, 3 5 the strokes are different. In the
letters, there are continuous ows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be certain that the
holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to adduce
evidence in support of their opposition to the probate of the holographic will of the
deceased Matilde Seño Vda. de Ramonal. cdtai

No costs.
SO ORDERED.
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 EN BANC

[G.R. No. L-20234. December 23, 1964.]

PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA

POTOT, ET AL., and THE HONORABLE COURT OF APPEALS,
respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.

SYLLABUS

1. JUDGMENTS; PROBATE COURTS; ERROR OF LAW DOES NOT AFFECT

JURISDICTION OF NOR CONCLUSIVE EFFECT OF DECISION. — An error of law
committed in admitting a joint will to probate does not affect the jurisdiction of the
probate court nor the conclusive effect of its final decision.
2. ID.; ID.; PROBATE DECREE OF JOINT WILL AFFECTS ONLY SHARE OF
DECEASED SPOUSE. — A nal probate decree of a joint will of husband and wife affects
only the share of the deceased spouse and cannot include the disposition of the share
of the surviving spouse. The validity of said joint will, in so far as the estate of the latter
spouse is concerned, must be, on her death, reexamined and adjudicated de novo.
3. WILLS; EFFECT OF VALIDITY OF JOINT WILL AS TO SHARE OF WIFE WHO
DIES LATER THAN THE HUSBAND. — Where a husband and wife executed a join will and
upon the death of the husband, said will was admitted to probate by a nal decree of
the court although erroneous, and the wife dies later, it is held that said rst decree of
probate affects only the estate of the husband but cannot affect the estate of the wife,
considering that a joint will is a separate will of each testator, and a joint will being
prohibited by law, the estate of the wife should pass upon her death to her intestate
heirs and not to the testamentary heirs, unless some other valid will is shown to exist in
favor of the latter or unless the testamentary heir is the only heir intestate of said wife.

DECISION

J.B.L. J :
REYES, J.B.L., p

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of
Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp 2-4):
"It appears that on May 9, 1939, the spouses, Bernabe de la Cerna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that 'our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
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 Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot', and that 'while each of the testator is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned', the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe de la Cerna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which, after due publication as required by law and
there being no opposition, heard the evidence, and, by Order of October 31,
1939, in Special Proceedings No. 499, 'declara legalizado el documento
Exhibito A como el testamento y ultima voluntad del nado Bernabe de la
Cerna con derecho por parte de su viuda superstite Gervasia Rebaca y otra
testadora al proprio tiempo segun el Exhibito A de gozar de los frutos de los
terrenos descritos en dicho documento; y habido consideracion de la cuantia
de dichos bienes, se derecta la distribucion sumaria de los mismos en favor
de la legataria universal Manuela Rebaca de Potot previa prestacion por
parte de la misma de una anza en la suma de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del nado
Bernabe de la Cerna dentro de los años desde esta fecha.' (Act. Esp. 499,
Testamentaria Finado Bernabe de la Cerna). Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was led on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 (Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca)."

The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of joint wills in
the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines);
but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground
that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
". . . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code)
prohibits the making of a will jointly by two or more persons either for their
reciprocal bene t or for the bene t of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by nal order of a Court of
competent jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done in the
case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court
gave effect to the provisions of the joint will therein mentioned, saying
'assuming that the joint will in question is valid'."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de
la Cerna.
The appealed decision correctly held that the nal decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna,
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 died), has conclusive effect as to his last will and testament, despite the fact that even
then the Civil Code already decreed the invalidity of joint wills, whether in favor of the
joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code). The
error thus committed by the probate court was an error of law, that should have been
corrected by appeal, but which did not affect the jurisdiction of the probate court, nor
the conclusive effect of its nal decision, however erroneous. A nal judgment rendered
on a petition for the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156); and public policy and
sound practice demand that at the risk of occasional errors, judgment of courts should
become nal at some de nite date xed by law. Interest rei publicae ut nis sit litium
(Dy Cay vs. Cross eld, 38 Phil. 521, and other cases cited in 2 Moran, Comments on the
Rules of Court 1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The contention that being
void the will cannot be validated, overlooks that the ultimate decision on whether an act
is valid or void rests with the courts, and here they have spoken with nality when the
will was probated in 1939. On this count, the dismissal of their action for partition was
correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest in
the conjugal properties the probate court acquired no jurisdiction, precisely because
her estate could not then be in issue. Be it remembered that prior to the Civil Code, a
will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will
is considered a separate will of each testator. Thus regarded, the holding of the Court
of First Instance of Cebu that the joint will is one prohibited by law was correct as to
the participation of the deceased Gervasia Rebaca in the properties in question, for the
reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil., 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death
to her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of said
Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent laws, and no usage to the contrary
may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the
Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in
CA-G.R. No. 23763-R is affirmed. No costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Paredes, Dizon, Regala,
Makalintal, Bengzon, J.P. and Zaldivar, JJ., concur.

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 FIRST DIVISION

[G.R. No. L-37453. May 25, 1979]

GONZALES petitioner, vs. HONORABLE COURT

RIZALINA GABRIEL GONZALES,
OF APPEALS and LUTGARDA SANTIAGO , respondents.

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

SYNOPSIS

Isabel Gabriel executed a 5-page will two months prior to her death. The
signatures of the deceased appear at the end of the will and at the left margin of all the
pages. The signatures of the three attesting witnesses appear at the bottom of the
attestation clause and on the left margin of all the other pages. The will named private
respondent as universal heir and executor, and gave legacies in speci ed amounts to
certain persons including the petitioner herein. The petition for the probate of the will
led by private respondent was opposed by petitioner. The trial court disallowed the
will on the grounds that the will of the deceased was not executed and attested as
required by law and that the document presented for probate is not the purported will
allegedly dictated by the deceased, executed and signed by her, and attested by the
three attesting witnesses. Respondent appealed. The Court of Appeals, upon
consideration of the evidence, reversed the trial court's decision and allowed the
probate of the will.
In this petition for review, petitioner assigned ten errors which are substantially
factual in character and content. A rming the decision of the Court of Appeals, the
Supreme Court held that the factual nding of the Court of Appeals are not reviewable
and are binding upon the Supreme Court.

SYLLABUS

1. APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT

REVIEWABLE. — The factual ndings of the Court of Appeals are not reviewable the
same being binding and conclusive on the Supreme Court, particularly where the
premises are borne by the record or based upon substantial evidence. Assignments of
errors involving factual issues cannot be ventilated in a review of the decision of the
Court of Appeals because only legal question may be raised.
2. WILLS; ATTESTING WITNESSES; QUALIFICATIONS. — Under the law, there
is no mandatory requirement that the witnesses testify initially at any time during the
trial as to his good standing in the community, his reputation for trustworthiness and
reliability, his honesty and uprightness in order that his testimony may be believed and
accepted by the trial court. It is enough that the quali cations enumerated in Article
820 of the Civil Code are complied with, such that the soundness of his mind can be
shown by or deduced from his answers to the questions propounded to him, that his
age (18 years or more) is shown from his appearance, testimony, or competently
proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is
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 able to read and write to the satisfaction of the court, and that he has none of the
disqualifications under Article 821 of the Civil Code.
3. ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. — The
instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and a rm the formalities attendant to said execution.
The rulings concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil Code.
4. ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. —
"Credible witnesses" mean competent witnesses and not those who testify to facts
from or upon hearsay. In the strict sense, the competency of a person to be an
instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil
Code, whereas his credibility depends on the appreciation of his testimony and arises
from the belief and conclusion of the court that said witness is telling the truth. It is not
necessary to introduce prior and independent proof of the fact that the witnesses are
"credible witnesses", that is, that they have a good standing in the community and
reputed to be trustworthy and reliable.
5. ID.; NOTARIAL WILLS, NATURE OF. — A notarial will duly acknowledged by
the testatrix and the witnesses before a notary public is a public document executed
and attested through the intervention of the notary public and as such public document
is evidence of the facts in clear, unequivocal manner therein expressed. It has in its
favor the presumption of regularity. To contradict all these, there must be evidence that
is clear, convincing the more than merely preponderant.
6. ID.; ATTESTATION CLAUSE. — The attestation clause which the attesting
witness signed is the best evidence as to date of signing because it preserves in
permanent form a recital of all the material facts attending the execution of the will.
This is the very purpose of the attestation clause which is made for the purpose of
preserving in permanent form, a record of the facts attending the execution of the will,
so that in case of failure in the memory of the subscribing witnesses, or other casualty
they may still be proved.
7. ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR
EXECUTION OF WILL. — The law does not require a photographer for the execution and
attestation of the will. The fact that an attesting witness mistakenly identi ed the
photographer scarcely detracts from her testimony that she was present when the will
was signed because what matters here is not the photographer but the photograph
taken which clearly portrays the attesting witnesses and her co-witnesses.
8. ID.; ID.; MINOR INCONSISTENCIES. — The discrepancy in the description of
the typewriter used by the notary which he described as "elate" which to him meant big
letters which are of the type in which the will was typewritten but which was identi ed
by an experts as "pica", and the mistake by the instrumental witness in mentioning the
name of the photographer-these are unimportant details which could have been
affected by the lapse of time and the treachery of human memory such as by
themselves would not alter the probative value of the testimonies of the witnesses on
the true execution of the will, for it cannot be expected that the testimony of every
person will be identical and coinciding with each other with regard to details in an
incident and that witnesses are not expected to remember all details.
9. APPEAL; FINDING OF FACT OF TRIAL COURT. — The right of the Court of
Appeals to review, alter and reverse the ndings of the trial court where the appellate
court, in reviewing the evidence has found that facts and circumstances of weight and
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 in uence have been ignored and overlooked and the signi cance of which have been
misinterpreted by the trial court, cannot be disputed. Find of facts made by the trial
court, particularly when they are based on con icting evidence whose evaluation hinges
on questions of credibility of contending witnesses lies particularly within the province
of trial courts and generally, the appellate court should not interfere with the same,
unless the trial court has overlooked and misinterpreted the facts and circumstances
established in the record.
10. ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF
APPEALS IS CONCLUSIVE AS TO FACTS. — Among the exceptions to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed
by the Supreme Court are: (1) when the conclusion as a nding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
judgment is based on a misapprehension of facts; (5) when the ndings of facts are
con icting; (6) when the Court of Appeals, in making its ndings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and
appellee.
11. WILLS; DUE EXECUTION. — Where the tree instrumental witnesses, who
constitute the best evidence of the will-making, as well as the lawyer who prepared it
and who thereafter notarized it have testi ed in favor of the will, and where all of them
are disinterested witnesses who stand to received no bene t from the testament, and
the signatures of the witnesses and the testatrix have been identi ed on the will and
there is no claim whatsoever and by any one, much less the petitioner that they are not
genuine, the decision holding that the will was executed in accordance with the
formalities required by law should be affirmed.

DECISION

GUERRERO , J : p

This is a petition for review of the decision of the Court of Appeals, First Division,
1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of
the Court of First Instance of Rizal dated December 15, 1964 and allowed the probate
of the last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago
led a petition with the Court of First Instance of Rizal docketed as Special
Proceedings No. 3617, for the probate of a will alleged to have been executed by the
deceased Isabel Gabriel and designating therein petitioner as the principal bene ciary
and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal her place of
residence, on June 7, 1961 at the age of eighty- ve (85), having been born in 1876. It is
likewise not controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private
respondent, with her husband and children, lived with the deceased at the latter's
residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog,
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 appears to have been executed in Manila on the 15th day of April, 1961, or barely two
(2) months prior to the death of Isabel Gabriel. It consists of ve (5) pages, including
the pages whereon the attestation clause and the acknowledgment of the notary public
were written. The signatures of the deceased Isabel Gabriel appear at the end of the
will on page four and at the left margin of all the pages. The attestation clause, which is
found on page four, reads as follows:

"PATUNAY NG MGA SAKSI

"Kaming mga nakalagdang mga saksi o testigo na ang aming mga

tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa
ibaba nito, ay pagpapatutuo na ipinakilala, ipinaalam at ipinahayag sa amin ni
Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages)
pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel
Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat
na dahon (page four) at nasa itaas ng patunay naming ito, at sa kaliwang panig
ng lahat at bawat dahon (and on the left hand margin of each and every page), sa
harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa
harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim
ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito."

At the bottom thereof, under the heading "Pangalan", are written the signatures of
Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same,
under the heading "Tirahan", are their respective places of residence, 961 Highway 54,
Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas.
Their signatures also appear on the left margin of all the other pages. The will is paged
by typewritten words as follows: "Unang Dahon" and underneath "(Page One)",
"Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each
page. prLL

The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church,
all expenses to be paid from her estate; that all her obligations, if any, be paid; that
legacies in speci ed amounts be given to her sister, Praxides Gabriel Vda. de Santiago,
her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina
(herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina,
Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein
private respondent Lutgarda Santiago, who was described in the will by the testatrix as
"aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang
tunay na anak" and named as universal heir and executor, were bequeathed all
properties and estate, real or personal, already acquired, or to be acquired, in her
(testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the following
grounds:
1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;

3. that, at the time of the alleged execution of the purported will, the
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 decedent lacked testamentary capacity due to old age and sickness; and in the
second alternative

4. that the purported will was procured through undue and improper
pressure and in uence on the part of the principal bene ciary, and/or of some
other person for her benefit.

Lutgarda Santiago led her Answer to the Opposition on February 1, 1962. After
trial the court a quo rendered judgment, the summary and dispositive portions of which
read:
"Passing in summary upon the grounds advanced by the oppositor, this
Court finds:

"1. That there is no iota of evidence to support the contention that the
purported will of the deceased was procured through undue and improper
pressure and in uence on the part of the petitioner, or of some other person for
her benefit;

"2. That there is insu cient evidence to sustain the contention that at
the time of the alleged execution of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;

"3. That su cient and abundant evidence warrants conclusively the

fact that the purported will of the deceased was not executed and attested as
required by law;

"4. That the evidence is likewise conclusive that the document

presented for probate, Exhibit 'F' is not the purported will allegedly dictated by the
deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.

"WHEREFORE, Exhibit 'F', the document presented for probate as the last
will and testament of the deceased Isabel Gabriel, is hereby DISALLOWED."

From this judgment of disallowance, Lutgarda Santiago appealed to respondent

Court, hence, the only issue decided on appeal was whether or not the will in question
was executed and attested as required by law. The Court of Appeals, upon
consideration of the evidence adduced by both parties, rendered the decision now
under review, holing that the will in question was signed and executed by the deceased
Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the
document in the presence of the deceased and of each other as required by law, 2
hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid
decision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago.
Thereafter, parties submitted their respective Memoranda, 5 and on August 28, 1973,
respondent Court, Former Special First Division, by Resolution 6 denied the motion for
reconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence
shows that the supposed last will and testament of Isabel Gabriel was not
executed in accordance with law because the same was signed on several
occasions, that the testatrix did not sign the will in the presence of all the
instrumental witnesses did not sign the will in the presence of each other.
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 "The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined the
oral and documentary evidence of record. There is no reason to alter the ndings
of fact in the decision of this Court sought to be set aside. 7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends
that respondent Court abused its discretion and/or acted without or in excess of its
jurisdiction in reversing the ndings of fact and conclusions of the trial court. The Court,
after deliberating on the petition but without giving due course resolved, in the
Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which
comment was led on Nov. 14, 1973. Upon consideration of the allegations, the issues
raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the
question raised being factual and for insu cient showing that the ndings of fact by
respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales led
a Motion for Reconsideration 1 0 which private respondent answered by way of her
Comment or Opposition 1 1 led on January 15, 1974. A Reply and Rejoinder to Reply
followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document,
Exhibit "F" was executed and attested as required by law when there was absolutely no
proof that the three instrumental witnesses were credible witnesses.
II. The Court of Appeals erred in reversing the nding of the lower court that
the preparation and execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in nding that Atty. Paraiso was not previously
furnished with the names and residence certi cates of the witnesses as to enable him
to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three
typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all present in the
same occasion.
V. The Court of Appeals erred in reversing the trial court's nding that it was
incredible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the nding of the trial court that
Matilde Orubia was not physically present when the will, Exhibit "F" was allegedly signed
on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions,
evasions, and misrepresentations of witnesses (subscribing and notary) presented by
the petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has
so far departed from the accepted and usual course of judicial proceedings, as to call
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 for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit "F", the alleged last will and testament of the deceased
Isabel Gabriel.
It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We must again
state the oft-repeated and well-established rule that in this jurisdiction, the factual
ndings of the Court of Appeals are not reviewable, the same being binding and
conclusive on this Court. This rule has been stated and reiterated in a long line of cases
enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743) 1 2 and Tapas
vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 1 3 and in the more recent cases of
Baptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de
Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In
the case of Chan vs. CA, this Court said: LibLex

". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by
the then Justice Recto, it has been well-settled that the jurisdiction of this Court in
cases brought to us from the Court of Appeals is limited to reviewing and revising
the errors of law imputed to it, its ndings of fact being conclusive. More
speci cally, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel it was held that the same principle is applicable, even if the
Court of Appeals was in disagreement with the lower court as to the weight of the
evidence with a consequent reversal of its findings of fact. . . .

Stated otherwise, ndings of facts by the Court of Appeals, when supported by

substantive evidence are not reviewable on appeal by certiorari. Said ndings of the
appellate court are nal and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon substantial evidence and what is
more, when such ndings are correct. Assignments of errors involving factual issues
cannot be ventilated in a review of the decision of the Court of Appeals because only
legal questions may be raised. The Supreme Court is not at liberty to alter or modify the
facts as set forth in the decision of the Court of Appeals sought to be reversed. Where
the ndings of the Court of Appeals are contrary to that of the trial court, a minute
scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes
necessary. The general rule We have thus stated above is not without some recognized
exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to
consider petitioner's assignments of errors.
Petitioner, in her rst assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit "F", was executed and attested as
required by law when there was absolutely no proof that the three instrumental
witnesses were credible witnesses. She argues that the requirement in Article 806, Civil
Code, that the witnesses must be credible is an absolute requirement which must be
complied with before an alleged last will and testament may be admitted to probate
and that to be a credible witness, there must be evidence on record that the witness
has a good standing in his community, or that he is honest and upright, or reputed to be
trustworthy and reliable. According to petitioner, unless the quali cations of the
witness are rst established, his testimony may not be favorably considered. Petitioner
contends that the term "credible" is not synonymous with "competent" for a witness
may be competent under Article 820 and 821 of the Civil Code and still not be credible
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 as required by Article 805 of the same Code. It is further urged that the term "credible"
as used in the Civil Code should receive the same settled and well-known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil
Code provisions on wills with respect to the qualifications of witnesses.
We nd no merit to petitioner's rst assignment of error. Article 820 of the Civil
Code provides the quali cations of a witness to the execution of wills while Article 821
sets forth the disqualification from being a witness to a will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years
or more, and not blind, deaf or dumb, and able to read and write, may be a witness
to the execution of a will mentioned in article 805 of this Code.

"Art. 821. The following are disqualified from being witnesses to a will:

(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a

document, perjury or false testimony.

Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his reputation
for trustworthiness and reliableness, his honesty and uprightness in order that his
testimony may be believed and accepted by the trial court. It is enough that the
quali cations enumerated in Article 820 of the Civil Code are complied with, such that
the soundness of his mind can be shown by or deduced from his answers to the
questions propounded to him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as well as the fact that he is
not blind, deaf or dumb and that he is able to read and write to the satisfaction of the
Court, and that he has none of the disquali cations under Article 821 of the Civil Code.
We reject petitioner's contention that it must rst be established in the record the good
standing of the witness in the community, his reputation for trustworthiness and
reliableness, his honesty and uprightness, because such attributes are presumed of the
witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as
used in the Civil Code should be given the same meaning it has under the Naturalization
Law where the law is mandatory that the petition for naturalization must be supported
by two character witnesses who must prove their good standing in the community,
reputation for trustworthiness and reliableness, their honesty and uprightness. The two
witnesses in a petition for naturalization are character witnesses in that being citizens
of the Philippines, they personally know the petitioner to be a resident of the Philippines
for the period of time required by the Act and a person of good repute and morally
irreproachable and that said petitioner has in their opinion all the quali cations
necessary to become a citizen of the Philippines and is not in any way disquali ed
under the provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473
as amended).
In probate proceedings, the instrumental witnesses are not character witnesses
for they merely attest the execution of a will or testament and a rm the formalities
attendant to said execution. And We agree with the respondent that the rulings laid
down in the cases cited by petitioner concerning character witnesses in naturalization
proceedings are not applicable to instrumental witnesses to wills executed under the
Civil Code of the Philippines.
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 In the case at bar, the nding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent
and credible is satisfactorily supported by the evidence as found by the respondent
Court of Appeals, which ndings of fact this Tribunal is bound to accept and rely upon.
Moreover, petitioner has not pointed to any disquali cation of any of the said
witnesses, much less has it been shown that anyone of them is below 18 years of age,
of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. While the petitioner submits that Article
820 and 821 of the New Civil Code speak of the competency of a witness due to his
quali cations under the rst Article and none of the disquali cations under the second
Article, whereas Article 805 requires the attestation of three or more credible
witnesses, petitioner concludes that the term credible requires something more than
just being competent and, therefore, a witness in addition to being competent under
Articles 820 and 821 must also be a credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a
witness are not synonymous terms and one may be a competent witness and yet not a
credible one. She exacerbates that there is no evidence on record to show that the
instrumental witnesses are credible in themselves, that is, that they are of good
standing in the community since one was a family driver by profession and the second
the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the driver of the
testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia
was a piano teacher to a grandchild of the testatrix. But the relation of employer and
employee much less the humble social or nancial position of a person do not
disqualify him to be a competent testamentary witness. (Molo-Pekson and Perez-Nable
vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March 18,
1941, p. 788). llcd

Private respondent maintains that the quali cations of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820
of the same Code, this being obvious from that portion of Article 820 which says "may
be a witness to the execution of a will mentioned in Article 805 of this Code," and cites
authorities that the word "credible" insofar as witnesses to a will are concerned simply
means "competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme
Court held that "Granting that a will was duly executed and that it was in existence at the
time of, and not revoked before, the death of the testator, still the provisions of the lost
will must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon
hearsay." (emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme
Court held that "Section 620 of the same Code of Civil Procedure provides that any
person of sound mind, and of the age of eighteen years or more, and not blind, deaf, or
dumb and able to read and write, may be a witness to the execution of a will. This same
provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of
employer and employee, or being a relative to the bene ciary in a will, does not
disqualify one to be a witness to a will. The main quali cation of a witness in the
attestation of wills, if other quali cations as to age, mental capacity and literacy are
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 present, is that said witness must be credible, that is to say, his testimony may be
entitled to credence. There is a long line of authorities on this point, a few of which we
may cite:
"A 'credible witness' is one who is not disquali ed to testify by mental
incapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74
A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010." (Words and Phrases, Vol. 10, p. 340).

"As construed by the common law, a 'credible witness' to a will means a

'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A,
837." (Ibid, p. 341).

"Expression 'credible witness' in relation to attestation of wills means

'competent witness'; that is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ. St. art. 8283. Moos vs. First State Bank of
Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)

"The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the time
of attesting the will, are legally competent to testify, in a court of justice, to the
facts attested by subscribing the will, the competency being determined as of the
date of the execution of the will and not of the time it is offered for probate. Smith
vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)

"'Credible witnesses', as used in the statute relating to wills, means

competent witnesses — that is, such persons as are not legally disquali ed from
testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying generally, or
rendering them incompetent in respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42."
(Ibid. p. 343)

In the strict sense, the competency of a person to be an instrumental witness to

a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his
credibility depends on the appreciation of his testimony and arises from the belief and
conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de
Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the
Supreme Court held and ruled that: "Competency as a witness is one thing, and it is
another to be a credible witness, so credible that the Court must accept what he says.
Trial courts may allow a person to testify as a witness upon a given matter because he
is competent, but may thereafter decide whether to believe or not to believe his
testimony."
In ne, We state the rule that the instrumental witnesses in order to be
competent must be shown to have the quali cations under Article 820 of the Civil Code
and none of the disquali cations under Article 821 and for their testimony to be
credible, that is worthy of belief and entitled to credence, it is not mandatory that
evidence be rst established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for respondent not
to have introduced prior and independent proof of the fact that the witnesses were
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 "credible witnesses", that is, that they have a good standing in the community and
reputed to be trustworthy and reliable.
Under the second, third, fourth, fth, sixth, seventh and eighth assignments of
errors, petitioner disputes the ndings of fact of the respondent court in nding that
the preparation and execution of the will was expected and not coincidental, in nding
that Atty. Paraiso was not previously furnished with the names and residence
certi cates of the witnesses as to enable him to type such data into the document
Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion, in holding credible that
Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in
holding that Matilde Orobia was physically present when the will was signed on April
15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and
Maria Gimpaya, in holding that the trial court gave undue importance to the picture
takings as proof that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing and
notary) presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid
down that the ndings of fact of the appellate court are binding and controlling which
We cannot review, subject to certain exceptions which We will consider and discuss
hereinafter. We are convinced that the appellate court's findings are sufficiently justified
and supported by the evidence on record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the o ce of Atty. Paraiso and bringing all the
witnesses without previous appointment for the preparation and execution of the will
and that it was coincidental that Atty. Paraiso was available at the moment impugns the
nding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel
Gabriel and of her companions to his o ce on April 15, 1961 was unexpected as there
was no prior appointment with him, but he explained that he was available for any
business transaction on that day and that Isabel Gabriel had earlier requested him to
help her prepare her will. The nding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only informed on the morning of the day
that he witnessed the will but that it was the third time when Isabel Gabriel told him that
he was going to witness the making of her will, as well as the testimony of Maria
Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel
Gabriel's house which was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and
his wife Maria Gimpaya obtained residence certi cates a few days before Exhibit "F"
was executed. Celso Gimpaya's residence certi cate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certi cate No. A-
5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and that the
securing of these residence certi cates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence,
reveals that the spouses were earlier noti ed that they would be witnesses to the
execution of Isabel Gabriel's will.
LLphil

We also agree with the respondent Court's conclusion that the excursion to the
o ce of Atty. Paraiso was planned by the deceased, which conclusion was correctly
drawn from the testimony of the Gimpaya spouses that they started from the Navotas
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 residence of the deceased with a photographer and Isabel Gabriel herself, then they
proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and
from there, all the three witnesses (the Gimpayas and Orobia) passed by a place where
Isabel Gabriel stayed for about ten to fteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testi ed to by Atty. Paraiso, that previous
to the day that the will was executed on April 15, 1961, Isabel Gabriel had requested
him to help her in the execution of her will and that he told her that if she really wanted
to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a
Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certi cate
from a physician notwithstanding the fact that he believed her to be of sound and
disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya including the photographer in the law o ce of Atty.
Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel
herself."
As to the appellate court's nding that Atty. Paraiso was not previously furnished
with the names and residence certi cates of the witnesses as to enable him to type
such data into the document Exhibit "F", which the petitioner assails as contradictory
and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list
(containing the names of the witnesses and their respective residence certi cates)
immediately upon their arrival in the law o ce by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testi ed that it was only on said occasion
that he received such list from Isabel Gabriel, We cannot agree with petitioner's
contention. We nd no contradiction for the respondent Court held that on the occasion
of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and
that no such list was given the lawyer in any previous occasion or date prior to April 15,
1961.
But whether Atty. Paraiso was previously furnished with the names and residence
certi cates of the witnesses on a prior occasion or on the very occasion and date in
April 15, 1961 when the will was executed, is of no moment for such data appear in the
notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to
by the witnesses on April 15, 1961 following the attestation clause duly executed and
signed on the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly
acknowledged by the testatrix and the witnesses before a notary public, the same is a
public document executed and attested through the intervention of the notary public
and as such public document is evidence of the facts in clear, unequivocal manner
therein expressed. It has in its favor the presumption of regularity. To contradict all
these, there must be evidence that is clear, convincing and more than merely
preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We nd no such evidence pointed by
petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the
three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all present in the
same occasion merits Our approval because this conclusion is supported and borne
out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath
the typewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the only
name of Isabel Gabriel with Residence Tax Certi cate No. A-5113274 issued on
February 24, 1961 at Navotas, Rizal appears to be in typewritten form while the names,
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 residence tax certi cate numbers, dates and places of issuance of said certi cates
pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso.
Again, this coincides with Atty. Paraiso's even the sale must be made to close relatives;
and the seventh was the appointment of the appellant Santiago as executrix of the will
without bond. The technical description of the properties in paragraph 5 of Exhibit F
was not given and the numbers of the certi cates of title were only supplied by Atty.
Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are indicated
which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner
contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit
"F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was
an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few
weeks after the execution of Exhibit "F". While we can rule that this is a nding of fact
which is within the competency of the respondent appellate court in determining the
testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that
the testatrix dictated her will without any note or memorandum appears to be fully
supported by the following facts or evidence appearing on record. Thus, Isabel Gabriel,
despite her age, was particularly active in her business affairs as she actively managed
the affairs of the movie business Isabelita Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval,
former Governor of Rizal Province and acted as co-administratrix in the Intestate Estate
of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with
the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testi ed to by the three attesting witnesses and the
notary public himself.
Petitioner's sixth assignment of error is also bene t of merit. The evidence, both
testimonial and documentary is, according to the respondent court, overwhelming that
Matilde Orobia was physically present when the will was signed on April 15, 1961 by
the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such
factual nding of the appellate court is very clear, thus: "On the contrary, the record is
replete with proof that Matilde Orobia was physically present when the will was signed
by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano
lessons to the child of the appellant on Wednesdays and Saturdays and that April 15,
1961 happened to be a Saturday for which reason Orobia could not have been present
to witness the will on that day — is purely conjectural. Witness Orobia did not admit
having given piano lessons to the appellant's child every Wednesday and Saturday
without fail. It is highly probable that even if April 15, 1961 were a Saturday, she gave no
piano lessons on that day for which reason she could have witnessed the execution of
the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law o ce of Atty. Paraiso was in
the morning of April 15, 1961 and there was nothing to preclude her from giving piano
lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the attestation
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 clause to the will and on the left-hand margin of each of the pages of the will, the
documentary evidence which is the will itself, the attestation clause and the notarial
acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia
was present on that day of April 15, 1961 and that she witnessed the will by signing her
name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to
the date of signing because it preserves in permanent form a recital of all the material
facts attending the execution of the will. This is the very purpose of the attestation
clause which is made for the purpose of preserving in permanent form, a record of the
facts attending the execution of the will, so that in case of failure in the memory of the
subscribing witnesses, or other casualty they may still be proved.(Thompson on Wills,
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).LLpr

As to the seventh error assigned by petitioner faulting the Court of Appeals in

holding that the trial court gave undue importance to the picture-takings as proof that
the will was improperly executed, We agree with the reasoning of the respondent court
that: "Matilde Orobia's identi cation of the photographer as "Cesar Mendoza", contrary
to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that
the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to
lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly identi ed the photographer
as Cesar Mendoza scarcely detracts from her testimony that she was present when the
will was signed because what matters here is not the photographer but the photograph
taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya."
Further, the respondent Court correctly held: "The trial court gave undue importance to
the picture-takings, jumping therefrom to the conclusion that the will was improperly
executed. The evidence however, heavily points to only one occasion of the execution of
the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and
Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of
this occasion. Hence, their identi cation of some photographs wherein they all
appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-
taking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the rst incident upon the insistence of
Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer
present was wholly unnecessary if not pointless. What was important was that the will
was duly executed and witnessed on the first occasion on April 15, 1961," and We agree
with the Court's rationalization in conformity with logic, law and jurisprudence which do
not require picture-taking as one of the legal requisites for the execution or probate of a
will.
Petitioner points to alleged grave contradictions, evasions and
misrepresentations of witnesses in their respective testimonies before the trial court.
On the other hand, the respondent Court of Appeals held that said contradictions,
evasions and misrepresentations had been explained away. Such discrepancies as in
the description of the typewriter used by Atty. Paraiso which he described as "elite"
which to him meant big letters which are of the type in which the will was typewritten
but which was identi ed by witness Jolly Bugarin of the N.B.I as "pica", the mistake in
mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza
when actually it was Benjamin Cifra, Jr. — these are indeed unimportant details which
could have been affected by the lapse of time and the treachery of human memory such
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 that by themselves would not alter the probative value of their testimonies on the true
execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be
expected that the testimony of every person will be identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to
remember all details. Human experience teach us "that contradictions of witnesses
generally occur in the details of certain incidents, after a long series of questionings,
and far from being an evidence of falsehood constitute a demonstration of good faith.
Inasmuch as not all those who witness an incident are impressed in like manner, it is
but natural that in relating their impressions, they should not agree in the minor details;
hence the contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the ndings of the trial court should not
have been disturbed by the respondent appellate court because the trial court was in a
better position to weigh and evaluate the evidence presented in the course of the trial.
As a general rule, petitioner is correct but it is subject to well-established exceptions.
The right of the Court of Appeals to review, alter and reverse the ndings of the trial
court where the appellate court, in reviewing the evidence has found that facts and
circumstances of weight and in uence have been ignored and overlooked and the
signi cance of which have been misinterpreted by the trial court, cannot be disputed.
Findings of facts made by trial courts particularly when they are based on con icting
evidence whose evaluation hinges on questions of credibility of contending witnesses
lies peculiarly within the province of trial courts and generally, the appellate court
should not interfere with the same. In the instant case, however, the Court of Appeals
found that the trial court had overlooked and misinterpreted the facts and
circumstances established in the record. Whereas the appellate court said that
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her
will without any note or document to Atty. Paraiso;" that the trial court's conclusion that
Matilde Orobia could not have witnessed anybody signing the alleged will or that she
could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she
witnessed only the deceased signing it, is a conclusion based not on facts but on
inferences; that the trial court gave undue importance to the picture-takings, jumping
therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will-
signing occasion was a mere coincidence and that Isabel Gabriel made an appointment
only with Matilde Orobia to witness the signing of her will, then it becomes the duty of
the appellate court to reverse ndings of fact of the trial court in the exercise of its
appellate jurisdiction over the lower courts. LLpr

Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed
by the Supreme Court. Again We agree with the petitioner that among the exceptions
are: (1) when the conclusion is a nding grounded entirely on speculations, surmises or
conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3)
when there is a grave abuse of discretion; (4) when the presence of each other as
required by law. " Speci cally, We a rm that on April 15, 1961 the testatrix Isabel
Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
photographer proceeded in a car to the o ce of Atty. Cipriano Paraiso at the Bank of
P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained
a medical certi cate from one Dr. Chikiamko which she gave to Atty. Paraiso upon
arriving at the latter's o ce and told the lawyer that she wanted her will to be made;
that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written in the
will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language
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 known to and spoken by her; that Atty. Paraiso read back to her what he wrote as
dictated and she a rmed their correctness; the lawyer then typed the will and after
nishing the document, he read it to her and she told him that it was alright; that
thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the
three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-
hand margin of each and every page of the document in the presence also of the said
three witnesses; that thereafter Matilde Orobia attested the will by signing her name at
the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of
the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of
the attestation clause and at the left-hand margin of the other pages of the document in
the presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya
followed suit, signing her name at the foot of the attestation clause and at the left-hand
margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso
Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV,
Series of 1961, in his Notarial Register. On the occasion of the execution and
attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso,
taken on said occasion of the signing of the will, and another, Exhibit "H", showing
Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with
her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did
not know beforehand the identities of the three attesting witnesses until the latter
showed up at his law o ce with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim-
which was not controverted that he wrote down in his own hand the date appearing on
page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and rati ed the will
on the date in question."
It is also a factual nding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or
document to Atty. Paraiso as against the contention of petitioner that it was incredible.
This ruling of the respondent court is fully supported by the evidence on record as
stated in the decision under review, thus: "Nothing in the record supports the trial
court's unbelief that Isabel Gabriel dictated her will without any note or document to
Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testi ed that
Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper
that she handed to said lawyer she had no note or document. This fact jibes with the
evidence — which the trial court itself believed was unshaken — that Isabel Gabriel was
of sound disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but
quite simple. The rst was Isabel Gabriel's wish to be interred according to Catholic
rites; the second was a general directive to pay her debts if any; the third provided for
P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her
brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces
including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the fth
was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the
remainder of her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme situations in which
judgment is based on a misapprehension of facts; (5) when the ndings of fact are
con icting; (6) when the Court of Appeals, in making its ndings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and
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 appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola
Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-
19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the ndings of
fact of the respondent appellate court are fully supported by the evidence on record.
The conclusions are fully sustained by substantial evidence. We nd no abuse of
discretion and We discern no misapprehension of facts. The respondent Court's
ndings of fact are not con icting. Hence, the well-established rule that the decision of
the Court of Appeals and its ndings of fact are binding and conclusive and should not
be disturbed by this Tribunal and it must be applied in the case at bar in its full force
and effect, without quali cation or reservation. The above holding simply synthesizes
the resolutions we have heretofore made in respect to petitioner's previous
assignments of error and to which We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as
We nd the respondent Court acted properly and correctly and has not departed from
the accepted and usual course of judicial proceedings as to call for the exercise of the
power of supervision by the Supreme Court, and as We nd that the Court of Appeals
did not err in reversing the decision of the trial court and admitting to probate Exhibit
"F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual ndings upon its summation and
evaluation of the evidence on record is unassailable that: "From the welter of evidence
presented, we are convinced that the will in question was executed on April 15, 1961 in
the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and
witnessing the same in the will on a table with Isabel Gabriel, Celso Gimpaya and Maria
Gimpaya sitting around the table. Atty. Paraiso, after nishing the notarial act, then
delivered the original to Isabel Gabriel and retained the other copies for his le and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso
Gimpaya and another photographer arrived at the o ce of Atty. Paraiso and told the
lawyer that she wanted another picture taken because the rst picture did not turn out
good. The lawyer told her that this cannot be done because the will was already signed
but Isabel Gabriel insisted that a picture be taken, so a simulated signing was
performed during which incident Matilde Orobia was not present." Cdpr

Petitioner's exacerbation centers on the supposed incredibility of the

testimonies of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instrumental
witnesses who constitute the best evidence of the will-making have testi ed in favor of
the probate of the will. So has the lawyer who prepared it, one learned in the law and
long in the practice thereof, who thereafter notarized it. All of them are disinterested
witnesses who stand to receive no bene t from the testament. The signatures of the
witnesses and the testatrix have been identi ed on the will and there is no claim
whatsoever and by anyone, much less the petitioner, that they were not genuine. In the
last and nal analysis, the herein con ict is factual and we go back to the rule that the
Supreme Court cannot review and revise the ndings of facts of the respondent Court
of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
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 FIRST DIVISION

[G.R. No. L-32213. November 26, 1973.]

AGAPITA N. CRUZ , petitioner, vs. HON. JUDGE GUILLERMO P.

VILLASOR, Presiding Judge of Branch I, Court of First Instance of
LUGAY respondents.
Cebu, and MANUEL B. LUGAY,

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

DECISION

ESGUERRA J :
ESGUERRA, p

Petition to review on certiorari the judgment of the Court of First Instance of

Cebu allowing the probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will (Exhibit "E"), alleging that the will was executed
through fraud, deceit, misrepresentation and undue in uence; that the said instrument
was executed without the testator having been fully informed of the contents thereof,
particularly as to what properties he was disposing; and that the supposed last will and
testament was not executed in accordance with law. Notwithstanding her objection, the
Court allowed the probate of the said last will and testament. Hence this appeal by
certiorari which was given due course.
The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E")
was executed in accordance with law, particularly Articles 805 and 806 of the new Civil
Code, the rst requiring at least three credible witnesses to attest and subscribe to the
will, and the second requiring the testator and the witnesses to acknowledge the will
before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr.,
Dr. Francisco Pañares, and Atty. Angel H. Teves, Jr., one of them, the last named, is at
the same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public to
acknowledge the same. As the third witness is the notary public himself, petitioner
argues that the result is that only two witnesses appeared before the notary public to
acknowledge the will. On the other hand, private respondent-appellee, Manuel B. Lugay,
who is the supposed executor of the will, following the reasoning of the trial court,
maintains that there is substantial compliance with the legal requirement of having at
least three attesting witnesses even if the notary public acted as one of them,
bolstering up his stand with 57 American Jurisprudence, p. 227 which, insofar as
pertinent, reads as follows:
"It is said that there are practical reasons for upholding a will as against
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 the purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath rather than
as attesting the execution of the instrument."

After weighing the merits of the con icting claims of the parties, We are inclined
to sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he cannot
acknowledge before himself his having signed the will. To acknowledge before means
to avow (Javellana v. Ledesma, 97 Phil. 258, 262; Castro v Castro, 100 Phil. 239, 247);
to own as genuine, to assent, to admit; and "before" means in front or preceding in
space or ahead of. (The New Webster Encyclopedic Dictionary of the English Language,
p. 72; Funk & Wagnalls New Standard Dictionary of the English Language, p. 252;
Webster's New International Dictionary 2d. p. 245.) Consequently, if the third witness
were the notary public himself, he would have to avow, assent, or admit his having
signed the will in front of himself. This cannot be done because he cannot split his
personality into two so that one will appear before the other to acknowledge his
participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That function
would be defeated if the notary public were one of the attesting or instrumental
witnesses. For them he would be interested in sustaining the validity of the will as it
directly involves himself and the validity of his own act. It would place him in an
inconsistent position and the very purpose of the acknowledgment, which is to
minimize fraud (Report of the Code Commission p. 106-107), would be thwarted.
Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized. (Mahilum
v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130) There are
others holding that his signing merely as a notary in a will nonetheless makes him a
witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d. 346; In Re Douglas' Will, 83 N. Y.
S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d. 911, Tyson v. Utterback, 122 So. 496; In Re
Baybee's Estate 160 N. W. 900; Merill v. Boal, 132 A. 721; See also Trenwith v.
Smallwood, 15 So. 1030). But these authorities do not serve the purpose of the law in
this jurisdiction or are not decisive of the issue herein, because the notaries public and
witnesses referred to in the aforecited cases merely acted as instrumental, subscribing
or attesting witnesses, and not as acknowledging witnesses. Here the notary public
acted not only as attesting witness but also as acknowledging witness, a situation not
envisaged by Article 805 of the Civil Code which reads:
"ART. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required to retain a
copy of the will or le another with the o ce of the Clerk of Court." [Emphasis
supplied]

To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting witnesses
to the will which would be in contravention of the provisions of Article 805 requiring at
least three credible witnesses to act as such and of Article 806 which requires that the
testator and the required number of witnesses must appear before the notary public to
acknowledge the will. The result would be, as has been said, that only two witnesses
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 appeared before the notary public for that purpose. In the circumstances, the law would
not be duly observed.
FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and
the probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not
valid and hereby set aside.
Cost against the appellee.
Makalintal, C .J ., Castro, Teehankee, Makasiar and Muñoz Palma, JJ ., concur.

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 EN BANC

[G.R. No. 40445. August 17, 1934.]

In re estate of the deceased Leonarda Macam y Capili. NICOLASA

MACAM, petitioner-appellant , vs. JUANA GATMAITAN,oppositor-appellant .

Reyes & Reyes for petitioner-appellant.

Magno S. Gatmaitan for oppositor-appellant.

SYLLABUS

1. WILLS; PROBATE; PRESENTATION AND PROBATE OF A CODICIL. —

The fact that a will has been probated and the order allowing the same has become final
and executory, is not a bar to the presentation or probate of a codicil, although its
existence was known at the time of the probate of the will.
2. ID.; ID.; ID.; OPPOSITION TO THE PROBATE OF A CODICIL. — The fact
that the oppositor to the probate of a codicil has not opposed the probate of the will,
having knowledge of such proceedings, does not constitute an abandonment of a right,
nor does it deprive her of the right to oppose the probate of said codicil.

DECISION

VILLA-REAL, J : p

This case comprises two appeals, one taken by the petitioner Nicolasa Macam
and the other by the oppositor Juana Gatmaitan, from an order of the Court of First
Instance of Bulacan, the dispositive part of which reads as follows:
"In view of the neglect or abandonment by the interested parties of their
respective claims during the proceedings for the probate of the will, and it
appearing that the order allowing the will has already become final and
executory, the court is of the opinion that it is now too late to consider the so-
called codicil as well as the instrument from which Juana Gatmaitan derives her
alleged right.
"Wherefore, the petition for the probate of the codicil as well as the
opposition thereto filed by Juana Gatmaitan is dismissed, without prejudice to
whatever right the latter may have in an appropriate proceeding before the
committee on claims and appraisal, in accordance with law. So ordered."
In support of her appeal, the petitioner Nicolasa Macam assigns the following
alleged errors as having been committed by the trial court in said decision, to wit:
"1. The lower court erred in holding that the parties have abandoned
their respective claims during the proceedings for the probate of the will.
"2. The lower court erred in declaring that it was already too late to
 raise the question as to the legal efficacy of the codicil executed by the deceased.
"3. The lower court erred in dismissing the petition for the probate of
the codicil before any of the parties had presented evidence pertinent to the
matter."
The oppositor Juana Gatmaitan, in turn, assigns the following alleged errors as
having been committed by the court a quo in said decision, to wit:
"1. The lower court erred in holding that in order for Juana Gatmaitan
to preserve her rights, so far as to oppose the probate of the codicil, it was her
duty to oppose to the probate of the will; and, having opposed the probate only of
the codicil, she could no longer avail herself of the document in her favor, so as to
affect the testamentary dispositions of the deceased Leonarda Macam.
"2. The lower court erred in dismissing the opposition of Juana
Gatmaitan to the probate of the alleged codicil."
The appellants assignments of error, considered together, raise the following
questions of law:
1. Is the probate of a will by final judgment prior to that of a codicil thereof a
bar to the probate of said codicil?
2. Does the failure of file opposition to the probate of a will constitute a bar to
the presentation of the codicil for probate?
The following pertinent facts, which are disclosed by the pleadings, are necessary
for the resolution of the questions raised in this appeal:
On March 27, 1933, Nicolasa Macam filed in the Court of First Instance of
Bulacan a petition for the probate of the will dated July 12, 1932, and of the codicil
thereof dated February 17, 1933, executed by Leonarda Macam who died on March 18,
1933, in the municipality of Calumpit, of said Province of Bulacan, and for her
appointment as executrix without bond.
When the petition was called for hearing on April 24, 1933, in the absence of the
judge, the clerk of the Court of First Instance of Bulacan, upon instructions of said judge
to proceed to take the evidence in the absence of any opposition, took the evidence
relative to the probate of the will, no opposition to the same having been filed. Inasmuch
as Juana Gatmaitan filed opposition to the probate of the codicil, said clerk deemed
himself unauthorized to take the evidence relative thereto and refrained from so doing.
The will and the evidence for its probate having been submitted to the court the
vacation Judge Hon. M. Rosauro, on April 28, 1933, entered an order allowing said will
and appointing the petitioner Nicolasa Macam as executrix.
On July 6, 1933, after notice to the parties, the codicil was called for hearing,
opposition having been filed by Juana Gatmaitan, one of the legatees instituted in the
will which had already been allowed by final and executory judgment. After hearing
counsel for the respective parties, Judge Francisco Enage, then presiding over the
Court of First Instance of Bulacan, entered the order the dispositive part of which has
been quoted at the beginning of this decision.
Section 625 of the Code of Civil Procedure provides as follows:
"SEC. 625. Allowance necessary, and conclusive as to execution. —
No will shall pass either the real or personal estate, unless it is proved and
allowed in the Court of First Instance, or by appeal to the Supreme Court; and the
 allowance by the court of a will of real and personal estate shall be conclusive as
to its due execution."
Interpreting the above legal provisions as regards the scope of the allowance of a
will, this court, in numerous decisions, has laid down the doctrine that the probate of a
will is conclusive as to its due execution and as to the testamentary capacity of the
testator, but not as to the validity of its provisions, and in probate proceedings the
courts are without jurisdiction to determine questions concerning the validity of the
provisions of the will. (Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5
Phil., 436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs. Ventenilla, 21 Phil., 180; In re
Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105.)
"A codicil is a written instrument wherein one declares his last will, in order
to take from or add something to the will, or clarify the provisions thereof."
(Spanish Cyclopaedia of Law, vol. 5, page 918.)
"A codicil has been defined as some addition to or qualification of one's
last will and testament." (28 R. C. L., 197.)
The exercise of the right to make a will, as a voluntary act, implies the right to
revoke, and article 737 of the Civil Code expressly provides that wills are essentially
revocable, provided that the partial or total revocation is made with the formalities
required for making it, in accordance with the provisions of article 738 of the same
Code.
The fact that a will has been allowed without opposition and the order allowing the
same has become final and executory is not a bar to the presentation and probate of a
codicil, provided it complies with all the necessary formalities for executing a will
required by section 614 of the Code of Civil Procedure, as amended by section 1 of Act
No. 1934.
It is not necessary that the will and the codicil be probated together, as the codicil
may be concealed by an interested party and it may not be discovered until after the will
has already been allowed; and they may be presented and probated one after the other
(40 Cyc., 1228), since the purpose of the probate proceedings is merely to determine
whether or not the will and the codicil meet all the statutory requirements for their
extrinsic validity, leaving the validity of their provisions for further consideration.
The appeal taken by the petitioner Nicolasa Macam is, therefore, well founded
and the court a quo erred in flatly denying her petition for the probate of the codicil on
the erroneous ground that said codicil should have been presented at the same time as
the will.
With respect to the opposition of the oppositor-appellant Juana Gatmaitan, the
fact that she failed to file opposition to the probate of the will does not prevent her from
filing opposition to the probate of the codicil thereof, inasmuch as the will may satisfy all
the external requisites necessary for its validity, but the codicil may, at the time of its
execution, not be in conformity therewith. If the testator had testamentary capacity at
the time of the execution of the will, and the will was executed in accordance with all the
statutory requirements, opposition to its probate would not lie. On the contrary, if at the
time of the execution of the codicil the testator lacked some of the subjective requisites
legally capacitating him to execute the same, or all the statutory requirements were not
complied with in the execution thereof, opposition to its probate would lie.
The court a quo, therefore, erred in dismissing the opposition filed by the
oppositor-appellant Juana Gatmaitan to the probate of the codicil of the will of the
deceased Leonarda Macam.
In view of the foregoing, we are of the opinion and so hold: (1) That the fact that a
will has been probated and the order allowing the same has become final and executory,
is not a bar to the presentation and probate of a codicil, although its existence was
known at the time of the probate of the will; (2) that the failure of the oppositor to the
probate of a codicil to file opposition to the probate of the will, having knowledge of such
proceedings, does not constitute an abandonment of a right, nor does it deprive her of
the right to oppose to probate of said codicil.
Wherefore, the order appealed from is reversed and it is ordered that the petition
for the probate of the codicil filed by the petitioner Nicolasa Macam, as well as the
opposition to said probate filed by the oppositor Juana Gatmaitan, he reinstated, without
special pronouncement as to costs. So ordered.
Malcolm, Imperial, Butte and Goddard, JJ., concur.
 FIRST DIVISION

[G.R. No. L-17714. May 31, 1922.]

In the matter of the estate of Jesus de Leon. IGNACIA DIAZ,DIAZ

petitioner-appellant, vs . ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado , Powell & Hill and Padilla & Trenas for appellee.

SYLLABUS

WILLS; REVOCATION; "ANIMO REVOCANDI". — According to the statute

governing the subject in this jurisdiction the destruction animo revocandi of a will
constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.) The
original will herein presented for probate having destroyed animo revocandi, cannot be
declared the will and last testament of the testator.

DECISION

ROMUALDEZ J :
ROMUALDEZ, p

The only question raised in this case is whether or not the will executed by Jesus
de Leon, now deceased, was revoked by him.
The petitioner denies such revocation, while the contestant af rms the same by
alleging that the testator revoked his will by destroying it, and by executing another will
expressly revoking the former.
We nd that the second will Exhibit 1 executed by the deceased is not clothed
with all the necessary requisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will with animo revocandi constitutes, in itself, a suf cient revocation. (
Sec 623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly
after the execution of the rst will in question, asked that the same be returned to him.
The instrument was returned to the testator who ordered his servant to tear the
document. This was done in his presence and before a nurse who testi ed to this
effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the will,
said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his rst will.
This fact is disclosed by the testator's own statement to the witnesses Canto and the
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 Mother Superior of the Hospital where he was confined.
The Original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgment is affirmed with costs against the petitioner. So ordered.
Araullo, C.J., Malcolm, Avanceña, Ostrand, and Johns, JJ., concur.
Villamor, J., did not take part.

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 SECOND DIVISION

[G.R. No. 26317. January 29, 1927.]

Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO , petitioner-

appellant, vs . CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA
MAMUYAC opponents-appellees.
BAUZON, and CATALINA MAMUYAC,

Nicanor Tavora for appellant.

Jose Rivera for appellees.

SYLLABUS

1. WILLS, CANCELLATION OF; PRESUMPTION. — The law does not require

any evidence of the revocation or cancellation of the will to be preserved. It therefore
becomes di cult at times to prove the cancellation or revocation of wills. The fact that
such cancellation or revocation has taken place must either remain unproved or be
inferred from evidence showing that after due search the original will cannot be found.
Where a will which cannot be found is shown to have been in the possession of the
testator, when last seen, the presumption is in the absence of other competent
evidence, that the same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it cannot be found
after his death. It will not be presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator.

DECISION

JOHNSON J :
JOHNSON, p

The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the
municipality of Agoo of the Province of La Union. It appears from the record that on or
about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and
testament (Exhibit A). In the month of January, 1922, the said Francisco Gago
presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the probation of
said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923,
upon the ground that the deceased had on the 16th day of April, 1919, executed a new
will and testament.

On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of April, 1919
(Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy
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 of the second will and testament executed by the said Miguel Mamuyac; (b) that the
same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c)
that the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919, upon
the ground that the same had been cancelled and revoked in the year 1920. Judge
Teodoro, after examining the evidence adduced, found that the following facts had
been satisfactorily proved:
"That Exhibit A is a mere carbon copy of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked it before his
death as per testimony of witnesses Jose Fenoy, who typed the will of the testator
on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original
of Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac,
who assured Carlos Bejar that inasmuch as he had sold him a house and the land
where the house was built, he had to cancel it the will of 1919), executing thereby
a new testament. Narcisa Gago in a way corroborates the testimony of Jose
Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in
1919 was found in the possession of father Miguel Mamuyac. The opponents
have successfully established the fact that father Miguel Mamuyac had executed
in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was
living in the house with him, when cross-examined by attorney for the opponents,
testi ed that the original of Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has been cancelled
by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not nding
from the evidence that the will in question had been executed with all the formalities
required by the law; that the same had been revoked and cancelled in 1920 before his
death; that the said will was a mere carbon copy and that the oppositors were not
estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive
proof, not denied, which was accepted by the lower court, that the will in question had
been cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to. be preserved. It therefore becomes di cult at times to prove
the revocation or cancellation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence showing that
after due search the original will cannot be found. Where a will which cannot be found is
shown to have been in the possession of the testator, when last seen, the presumption
is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready
access to the will and it cannot be found after his death. It will not be presumed that
such will has been destroyed by any other person without the knowledge or authority of
the testator. The force of the presumption of cancellation or revocation by the testator,
while varying greatly, being weak or strong according to the circumstances, is never
conclusive, but may be overcome by proof that the will was not destroyed by the
testator with intent to revoke it.
In view of the fact that the original will of 1919 could not be found after the death
of the testator Miguel Mamuyac and in view of the positive proof that the same had
been cancelled, we are forced to the conclusion that the conclusions of the lower court
are in accordance with the weight of the evidence. In a proceeding to probate a will the
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 burden of proof is upon the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of instances in which
wills are destroyed for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes with the
testator. Copies of wills should be admitted by the courts with great caution. When it is
proven, however, by proper testimony that a will was executed in duplicate and each
copy was executed with all the formalities and requirements of the law, the duplicate
may be admitted in evidence when it is made to appear that the original has been lost
and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
26063.) 1
After a careful examination of the entire record, we are fully persuaded that the
will presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby a rmed. And without any nding as to costs, it is so
ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Footnotes

1. Promulgated December 14, 1926, not reported.

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 EN BANC

[G.R. No. 47305. July 31, 1942.]

In the matter of the estate of Rufina Arevalo. ARISTON BUSTAMANTE,

administrator-appellant , vs. PETRONA AREVALO, ET AL., oppositors-
appellees.

Nicasio Yatco, for appellant.

Ventura & Belmonte, for appellees.

SYLLABUS

1. WILLS; ALLEGED FORGERY OF SIGNATURE OF TESTATRIX; CASE AT

BAR. — In passing upon questioned documents, the test is the general character of the
writing rather than any minute and precise comparison of individual letters or lines
(People vs. Bustos, 45 Phil., 30). In the present case, a careful scrutiny of all the
questioned and the standard signatures leaves the conviction that they have been
written by the same person because they show the same general type, quality and
characteristics, with natural variations. Moreover, a forger who has to make two or
more signatures usually sees to it that all the signatures are uniform for fear that any
difference might arouse suspicion. In this case, however, in some questioned signatures
the letters "R" and "u" are separated, but in others, they are united. Furthermore, the
document in question was prepared and signed in duplicate, so that there are six
signatures of the testatrix, instead of only three. It is reasonable to believe that a forger
would reduce the number of signatures to be forged so as to lessen the danger of
detection. In this case, the attorney who supervised the execution of the will must have
known that it was not necessary to make a signed duplicate thereof. To conclude that a
forgery has been committed, the evidence should be forcefully persuasive. Other
reasons are set out in the decision in support of the holding that the will in question is
genuine and should be allowed.
2. ID.; REVOCATION; INTERPRETATION BY COURTS. — Provisions of the
second will are quoted in the decision to show that the latter will entirely revoke the
earlier one. Though it might appear right that a relative, raised by the testatrix, should
receive something from the estate, nevertheless it would be venturesome for the court
to advance its own idea of a just distribution of the property in the face of a different
mode of disposition so clearly expressed by the testatrix in the later will. As she had no
forcible heirs, she was absolutely free to give her estate to whomsoever she chose,
subject of course to the payment of her debts. It would be a dangerous precedent to
strain the interpretation of a will in order to effect what the court believes to be an
equitable division of the estate of a deceased person. The only function of the courts in
these cases is to carry out the intention of the deceased as manifested in the will. Once
that intention has been determined through a careful reading of the will or wills, and
provided the law on legitimes has not been violated, it is beyond the pale of judicial
 cognizance to inquire into the fairness or unfairness of any devise or bequest. The court
should not sit in judgment upon the motives and sentiments of the testatrix, first,
because, as already stated, nothing in the law restrained her from disposing of her
property in any manner she desired, and, secondly, because there are no adequate
means of ascertaining the inward processes of her conscience. She was the sole judge
of her own attitude toward those who expected her bounty.

DECISION

BOCOBO, J : p

The main issue in this case is whether or not Exhibit C, presented by appellant for
allowance as the last will and testament of the deceased Rufina Arevalo, is a forgery.
The Court of First Instance of Manila held that it was a forged document, and allowed an
earlier will, Exhibit 6, whose authenticity was unquestioned. The value of the estate is
over P50,000.
The questioned document was prepared and signed in duplicate. It consists of two
pages and is dated October 2, 1937. It appears to be signed by Rufina Arevalo and by
three witnesses, Manuel M. Cruz, Remigio Colina and Angel Sanchez. The formal
requisites of a will have been complied with.
An initial fact that arrests the attention is the formulation by the appellees of the
allegation of forgery even before seeing the questioned document. Said charge of
forgery was signed on April 22, 1938, although Exhibit C, which had been in a sealed
envelop, was not opened by order of the court till the next day, April 23, 1938. It is true
that the opposition by the appellees was not actually filed in court till April 23, but it was
signed by appellees' attorneys on April 22, was subscribed and sworn to by Amando
Clemente on April 22, and a copy thereof was sent by registered mail to Attorney
Nicasio Yatco on April 22. Moreover, in the morning of April 23, appellees' attorneys,
Messrs. Jose Belmonte and Vicente Delgado, announced their opposition to the will
Exhibit C in open court, before said document was opened by order of the court on that
day.
One of the principal reasons of the court a quo for believing Exhibit C to be a
forgery is that in the genuine signatures the terminal stroke of the capital "R" in "Rufina"
is not joined with the letter "u," while in Exhibit C such ending is united with the letter "u"
in the two marginal signatures, although in the central signature appearing on page 2,
the two letters are separated. The probate court believes that this difference between
the marginal and the central signatures is due to the fact that the forger first used the
check of "La Previsora" (Exhibit I) as the model in falsifying the marginal signatures, but
having been shown another signature with the characteristic already mentioned —
separation of the two letters — he tried to imitate said peculiarity in making the central
signature.
We believe the probate court has overlooked the well-established principle that in
passing upon questioned documents, the test is the general character of the writing
rather than any minute and precise comparison of individual letters or lines. In People
vs. Bustos (45 Phil., 30), this Court held:
 "It is a first principle in writing that exact coincidence between two
signatures is absolute proof that one or the other is a forgery. There must be some
difference before authenticity can be admitted; and the general rule is that
authenticity reposes upon a general characteristic resemblance, coupled with
specific differences, such as naturally result from the infinite variety of conditions
controlling the muscles of the writer at each separate effort in forming his
signature." (Emphasis supplied.)
In the present case, a careful scrutiny of all the questioned and the standard
signatures has convinced us that they have been written by the same person because
they show the same general type, quality and characteristics, with natural variations.
We are, therefore, inclined to give credence to the expert testimony to that effect
presented by the appellant.
Moreover, a forger who has to make two or more signatures usually sees to it
that all the signatures are uniform for fear that any difference might arouse suspicion. In
this case, however, in some questioned signatures the letters "R" and "u" are separated,
but in others, they are united. Osborne in "Questioned Documents" (pp. 368, 369) says:
"Another indication of genuineness in a holographic document or a
considerable amount of writing, or in two or more disputed signatures, are
certain natural variations in the details of the writing. It is difficult for the
inexperienced or unthinking examiner to understand that a certain extent of
variation in a group of several signatures and variation in repeated words and
letters in a continuous holographic document can be evidence of genuineness.
The forger does not understand this necessity for natural variation and, as nearly
as he can, makes words and letters just alike.
xxx xxx xxx
"It necessarily follows, therefore, that if the several lines of a disputed
document, or several signatures under investigation, show these natural
variations of writing of the same word or letter, all of course within the scope of
variation of the genuine writing, this variation itself, surprising and paradoxical as
it may appear, is as strong evidence of genuineness as the opposite condition is
evidence of forgery ." (Emphasis supplied.)
Furthermore, it is to be noted that the document in question was prepared and
signed in duplicate, so that there are six signatures of Rufina Arevalo, instead of only
three. It is reasonable to believe that a forger would reduce the number of signatures to
be forged so as to lessen the danger of detection. In this case, Attorney Nicasio Yatco,
who supervised the execution of Exhibit C, must have known that it was not necessary
to make a signed duplicate of the will.
As for the probate court's opinion that the forger must have used Exhibit I (a
check issued by "La Previsora" to Rufina Arevalo) as a model in falsifying the marginal
signatures, it is highly improbable that said check was in the hands of Rufina Arevalo or
of her attorney, Nicasio Yatco, on or about October 2, 1937, when the document in
question was signed. The check had been issued on June 30, 1936, or over a year
before, and it must have been returned by the bank concerned to "La Previsora" in the
ordinary course of business, because it was produced by the Manager of "La
Previsora." It should likewise be observed that the signature on the first page of the
duplicate will (Exhibit C-3) does not have the supposed peculiarity of the standard
signatures, that is, the separation between "R" and "u." If, as the lower court states, the
forger upon being shown a model other than Exhibit I, imitated said characteristic
separation in making the central or body signature on the original will Exhibit C, it is
indeed strange that he should not do the same immediately thereafter on the first page
of the duplicate will but that he should, instead, repeat the mistake he had made on the
marginal signatures on the original will.
Finally, to conclude that a forgery has been committed, the evidence should be
forcefully persuasive. Before we are disposed to find that an attorney-at-law has so
debased himself as to aid and abet the forgery of a will, which would not only send him
to jail for many years but would ruin his future, we must require proof sufficiently strong
to prevail against every fair and thoughtful hesitancy and doubt. And the instrumental
witnesses have testified that Rufina Arevalo signed the will in their presence. It is hard
to believe they would commit perjury as it has not been shown they had any interest in
this case.
Therefore, we find that the will of Rufina Arevalo, dated October 2, 1937 and
marked Exhibit C, is genuine and should be allowed.
It is unnecessary to discuss the incidental issues of fact so ably presented by
counsel and examined in detail by the probate court, inasmuch as the foregoing
disposes of the basic question raised. The relative position of the contending devisees
in the affection of the deceased; whether Rufina Arevalo could go alone to the law office
of Attorney Yatco on October 2, 1937 to sign the will Exhibit C; the alleged resentment
of the testatrix toward Amando Clemente when she signed the second will, and similar
questions are not of sufficient significance to alter the conclusion herein arrived at. In
fact, they merely tend to becloud the main issue.
The next question to be inquired into is whether or not the later will (Exhibit C)
dated October 2, 1937, whose probate is herein approved, has entirely revoked the
earlier will, Exhibit 6, dated January 9, 1936. Though both parties admit that the first will
has been revoked by the second, yet we deem it necessary to discuss the question
because a member of this Court thinks the earlier will can stand in part. It appears that
the undivided interest of Rufina Arevalo in two parcels of land and the improvements
thereon which belonged to the conjugal partnership between Bernabe Bustamante, who
had died before the making of the two wills, and Rufina Arevalo, was expressly devised
to Amando Clemente in the earlier will but was not specifically mentioned in the later
will. In the first will, Exhibit 6, Rufina Arevalo, who had no forcible heirs, gave to Ariston
Bustamante, her nephew, three lots and the buildings thereon; devised a parcel of land
and the houses standing thereon to her cousin, Petrona Arevalo Viuda de Zacarias, and
to her niece, Carmen Papa de Delgado; and finally disposed, in favor of Amando
Clemente, another cousin, of a piece of land and the houses thereon, and of her
undivided interest in the two parcels of land and the improvements thereon, which
belonged to the conjugal partnership, also making said Amando Clemente the residuary
legatee. But in the second will, Exhibit C, she designates Ariston Bustamante her only
heir in these terms:
"Segundo — Nombro como mi unico heredero, Ariston Bustamante, de
todas mis propiedades dejadas ya mueble o inmueble que se describen ms
abajo:
(a) Original Certificate of Title of Manila No. 5059
(b) Original Certificate of Title of Manila No. 4681
 (c) Transfer Certificate of Title of Manila No. 19961
(d) Original Certificate of Title of Manila No. 5066
(e) Original Certificate of Title of Manila No. 4682."
Her undivided interest in the two pieces of land of the conjugal partnership, with Torrens
titles No. 4887 and No. 15628, devised to Amando Clemente in the earlier will, is not
specifically mentioned in the later will, Exhibit C. Moreover, the second will has no
revocation clause.
At first sight, it would seem that the earlier will can stand with respect to Rufina
Arevalo's share in said two parcels of land belonging to the conjugal partnership. But a
closer examination of the later will counteracts such initial reaction.
In the first place, the testatrix in the second will names Ariston Bustamante her
only heir to all her property, both personal and real, her words in Spanish being:
"Nombro como mi unico heredero, Ariston Bustamante, de todas mis propiedades
dejadas ya mueble o inmueble." (Emphasis supplied.) It is true that in enumerating her
parcels of land, she did not specify her interest in the two lots of the conjugal
partnership. But this omission must have been due either to an oversight or to the belief
that it was premature to name said two parcels as the conjugal partnership was still
being liquidated. In either case, the testatrix must have thought that her comprehensive
words "mi unico heredero de todas mis propiedades dejadas ya mueble o inmueble"
would be sufficient to cover all her property, whether specially listed or not.
Secondly, in the opening paragraph of the second will, the following words appear:
"hago constar a todos este mi ultimo testamento y voluntad expresado en Castellano
lenguaje que conozco y poseo, y queriendo disponer de mis bienes por virtud de este
mi testamento." (Emphasis supplied.) Though she knew that she had made a first will,
she nevertheless said that the second will was her last one. This would seem to signify
that her last will, cancelling her previously expressed wish, was to make Ariston
Bustamante her only heir . Furthermore, when she said she wanted to dispose of her
property by means of the second will ("queriendo disponer de mis bienes por virtud de
este mi testamento"), it would appear to be her intention that no property of hers should
be left undisposed of in the second will. This fact is corroborated in the second clause
wherein she names Ariston Bustamante as her only heir to all her property whether
personal or real.
We believe, therefore, that the first will has been entirely revoked. Though it might
appear right that Amando Clemente should receive something from the estate because
he, together with Ariston Bustamante, has been raised by the testatrix, and both are her
relatives, nevertheless it would be venturesome for us to advance our own idea of a just
distribution of the property in the face of a different mode of disposition so clearly
expressed by the testatrix in the later will. As she had no forcible heirs, she was
absolutely free to give her estate to whomsoever she chose, subject of course to the
payment of her debts. It would be a dangerous precedent to strain the interpretation of a
will in order to effect what the court believes to be an equitable division of the estate of
a deceased person. The only function of the courts in these cases is to carry out the
intention of the deceased as manifested in the will. Once that intention has been
determined through a careful reading of the will or wills, and provided the law on
legitimes has not been violated, it is beyond the pale of judicial cognizance to inquire
into the fairness or unfairness of any devise or bequest. It might be said that it is hard to
understand how, in a temporary anger at Amando Clemente, the testatrix would entirely
cut him off from the inheritance. We should not, however, sit in judgment upon her
motives and sentiments, first because, as already stated, nothing in the law restrained
her from disposing of her property in any manner she desired, and secondly, because
there are no adequate means of ascertaining the inward processes of her conscience.
She was the sole judge of her own attitude toward those who expected her bounty.
In view of the foregoing, the decision appealed from, declaring the second will
Exhibit C a forgery and allowing the first will Exhibit 6, should be and is hereby
reversed, and another judgment shall be entered allowing the later will Exhibit C, which
has entirely revoked the earlier will Exhibit 6. No special pronouncement on costs is
made. Let the record of this case be returned to the court of origin for further
proceedings. So ordered.
Yulo, C.J., and Moran, J., concur.

Separate Opinions

OZAETA, J., concurring:

I concur in the finding that the will Exhibit C is genuine. I think, however, that the
discussion in the majority opinion of whether or not said Exhibit C entirely revoked the
previous will Exhibit 6 is unnecessary, inasmuch as both parties in their brief have
admitted the affirmative. There being no controversy between the parties on that score,
there seems to be no occasion for the Court to render an opinion thereon.

PARAS, J., concurring and dissenting :

The testatrix in this case executed two wills, one on January 9, 1936, and the
other on October 2, 1937. In the first will, the testatrix specifically referred to seven
parcels of land of considerable value and to certain personal properties. Three of these
parcels of land and all the personal properties are given to Amando Clemente, another
three to Ariston Bustamante, and the seventh parcel to Petrona Arevalo and Carmen
Papa. In the second will, the testatrix particularly referred to only five parcels of land
and certain personal properties, all of which are given to Ariston Bustamante, as her
universal heir. The second will does not make mention of two of the three parcels given
to Amando Clemente under the first will.
The question that arises is whether the second will has the effect of revoking the
first. In my opinion, where, as in the present case, the two wills can be reconciled, the
first should be considered revoked only in so far as it is inconsistent with the second.
As the second will was executed only twenty-one months after the first, the testatrix,
who has been conclusively shown to be of sound mind at the time of the execution of
the later will, could not have forgotten that she owned two other parcels of land,
especially if they are of considerable value. Even the lawyer who drafted the second will
was aware that the testatrix owned the said two parcels, because they were included in
the inventory made of her properties in connection with the administration proceedings
of the estate of her deceased husband. This omission could have been made only on
purpose, and, coupled with the circumstance that the second will does not expressly
revoke the first which has not been burned, torn, cancelled or obliterated, inevitably
leads to the inference that the testatrix in fact intended to make the first will effective as
to the two parcels of land above referred to.
Section 623 of the Code of Civil Procedure provides:
"No will shall be revoked, except by implication of law, otherwise than by
some will, codicil, or other writing executed as provided in case of wills; or by
burning, tearing, cancelling, or obliterating the same with the intention of revoking
it, by the testator himself, or by some other person in his presence, and by his
express direction."
xxx xxx xxx
"If partially conflicting, that of the latter date will operate to revoke the
former so far as the provisions of the two are conflicting or incompatible, and in
such case both wills are entitled to probate." (68 Corpus Juris 805.)
"Where there is no revocation in a later will of all former wills, two separate
and distinct wills may be probated, especially when the probating of one only of
the instruments would leave an intestacy as to part of the estate. This rule applies
even though the later instrument states that it is the last will and testament of the
testator, as the use of such words in a later instrument does not of itself revoke a
prior will." (Id. p. 885.)
I therefore vote for the probate of both wills.
 EN BANC

[G.R. No. 11823. February 11, 1918.]

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION

EUGENIO , petitioners-appellants, vs . MONICA NAVAL, ROSA NAVAL,
NAVAL objectors-appellants.
and CELESTINA NAVAL,

Guillermo Lualhati for appellants.

Perfecto Gabriel for appellees.

SYLLABUS

1. WILLS; REVOCATION BY SUBSEQUENT WILL. — In order that a former will

may be revoked by operation of law by a subsequent will, it is necessary that the latter
should be-valid and executed with the formalities required for the making of wills.
2. ID.; ID. — A subsequent will containing a clause revoking a previous will,
should possess all the requisites of a will, should be signed and attested in the manner
provided by law, and should be allowed, in order that the revocatory clause thereof may
produce the effect of revoking the previous will.
3. ID.; ID.; VOID REVOCATORY CLAUSE. — A subsequent will, containing a
clause revoking a previous will, having been disallowed, for the reason that it was not
executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annulling the previous
will, inasmuch as said revocatory clause is void.

DECISION

ARAULLO , J : p

On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First
Instance of the city of Manila, for allowance as the will of Simeona F. Naval, who died in
said city two days previously, a document executed by her on February 13, 1915, and in
which he was appointed executor. The case was recorded as No. 13386 and, after
hearing the petition for allowance led by said executor. it was denied on the ground
that said document was not duly executed by the deceased as her last will and
testament, inasmuch as she did not sign it in the presence of three witnesses and the
two witnesses did not sign it in the presence of each other. Thereafter the nieces and
legatees of the same deceased led in the same court for allowance as her will, another
document executed by her on October 31, 1914, and, consequently, the case was
registered under another number, which was No. 13579. The petition for allowance was
opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will,
the allowance of which is asked, could not be allowed, because of the existence of
another will of subsequent date, executed during her lifetime by the same Simeona F.
Naval, and because said will has been revoked by another executed subsequently by her
during her lifetime, and, further, because said will has not been executed with the
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 formalities required by existing laws. Trial having taken place, at which evidence was
adduced, the court on February 8, 1916, issued an order, admitting said second
document and ordering its allowance as the last will and testament of said deceased.
From said order the opponents appealed to this court and transmitted to us the
corresponding declarations. Two of the opponents, that is, Rosa and Cristina Naval,
assigned, as errors committed by the court, the following:
1. The nding of the court that the will of October 31. 1914, has not been
revoked by that of February 13, 1915;
2. The act of the court in permitting the petitioner to institute and proceed
with the proceedings relative to the last case for the allowance of the will, No. 13579,
notwithstanding that proceedings had already been had in the other case No. 13386
and final judgment rendered therein; and
3. The act of the court in denying the motion for continuance of the trial on
the allowance of the will of October 31, 1914, which motion was presented for the sole
purpose of introducing evidence to show the falsity of the signatures appearing in said
will and submitting said signatures to the Bureau of Science for analysis.
The other opponent, Monica Naval. assigned, besides the rst two errors already
mentioned, the nding of the court that the disallowance of the will of said deceased,
dated February 13, 1915, on the ground that it was not executed in such form that it
could transmit real and personal property, according to section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause in said will.
From the evidence it appears, as we have already stated, that the trial court
declared that the rst document presented by the executor of the deceased, Simeona
F. Naval, as a will executed by her on February 13, 1915, and which was the subject-
matter of case No. 13386 of said court could not be allowed, on the ground that it was
not executed with the requisites and formalities prescribed by law. Article 739 of the
Civil Code provides that a former will is by operation of law revoked by another valid
subsequent will, if the testator does not state in the later will his desire that the former
should subsist wholly or partly. In harmony with this provision of substantive law, we
nd section 623 of the Code of Civil Procedure, which provides that no will shall be
revoked, except by implication of law, otherwise than by some will, codicil, or other
writing executed as provided in case of wills.
Therefore, according to these legal provisions, in order that the will of February
13, 1915, that is, the rst document presented as the will of the deceased Simeona F.
Naval, could have the effect of revoking that which was presented afterwards by the
petitioners as executed by the same deceased on October 31, 1914, that is, on a date
previous to the execution of the rst, it was necessary and indispensable that the later
will, that is, that rst presented for allowance, should be perfect or valid, that is,
executed as provided by law in case of wills.
It also appears from the record that the opponents themselves maintained that
said later will, that is, that of February 13, 1915, was not perfect, or executed as
provided by law in case of wills, and the Court of First Instance of Manila has so held in
disallowing said document as the will of the deceased. So that it is very evident that the
second will presented, that is, that of October 31, 1914, was not and could not have
been revoked by the rst, and the court was not in error in so holding in the order
appealed from. We deem it unnecessary to add a single word more or cite well-known
doctrines and opinions of jurists in support of what has already been stated.
As to the second error assigned by the opponents, we believe it su cient to
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 refer to what the court below stated in the judgment appealed from. It is as follows:
"The court nds no in congruency in the presentation of a prior will when
another will of subsequent date has been disallowed. Disregarding the fact that
the petitioners in this case were not those who presented the will in No. 13386, in
which the petition was presented by the same D. Perfecto Gabriel as executor, it is
proper to take into account that the object of a petition for allowance is to ask for
an order declaring that a will has been executed in accordance with the requisites
and formalities required by law. This is a question for the court to decide and is
out of the control of the party who presents the will. The allowance or
disallowance of a will by a competent court depends upon whether the evidence
adduced at the trial shows or does not show that the formalities required by law
have been complied with, and this cannot be determined in advance, as a general
rule, by the person who presents the testament, for he has not always concurred
in or seen the execution of the will.
"If, therefore, the person who presents a will and asks that it be allowed
does not secure its allowance, and he has in his possession another will, or has
information that another exists, he does not contradict himself by asking for the
allowance of the will of earlier date merely because the later will was declared
invalid by the proper court. If in this case there is any who adopts a contradictory
position, it is the respondent himself, inasmuch as in case No. 13386 he alleged,
as a ground for the disallowance of the will then presented, that it was not
executed in accordance with the law, and now he maintains the contrary, for he
claims that said will revoked that which is now presented."
With respect to the third error, it is beyond doubt that the court did not commit it,
for it appears that when the examination of the witness, Cristina Samson, was nished
and the court told Attorney Lualhati, counsel for the respondents, to continue adducing
his evidence, he said he had no more proof, although he added that he would ask the
court to grant him permission to send the will of 1914 to the Bureau of Science, which
petition was objected to by the attorney for the proponents and denied by the court.
Immediately thereafter the attorney for the opponents asked for the continuance of the
trial, which was also denied by the court, after objection was made by the proponents.
The attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the
Bureau of Science, in the terms in which it was made to the court, after he had stated
that he had no more evidence to present, signi ed that he left it to the discretion of the
court to grant it or not. Furthermore, no exception was taken to the order denying this
motion, and although the attorney for the opponents excepted to the order denying the
motion for continuance of the trial, such exception was completely useless and
ineffective for the purpose of alleging before this court that the trial court erred in that
respect, for said resolution, being one of those left to the discretion of the court in the
exercise of its functions, according to section 141 of the Code of Civil Procedure, it
could not be the subject of an exception, unless the court, in denying said motion,
abused its discretional power and thereby prejudiced the essential rights of the
respondents, which is not the case here.
The error which, in addition to the rst two already mentioned, has been assigned
by the opponent and appellant, Monica Naval, refers, according to her, to the court's
action in declaring that the disallowance of the will of the deceased Simeona F. Naval,
dated February 13, 1915, for the reason that it was not executed in such manner and
form that it could transmit real and personal property, according to the provisions of
section 618 of the Code of Civil Procedure, also had the effect of annulling the
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 revocatory clause of said will.
First of all, it is not true that the court made such statement in the terms given in
said assignment of error, that is, it is not true that the court declared that, because said
will was not executed in the form required by law in order that it may transmit real and
personal property, according to the provisions of section 618, the disallowance of said
will also had the effect of annulling the revocatory clause therein contained. In the order
appealed from there is no declaration or conclusion made in these terms. The court did
not say that the annulment of the revocatory clause in said will was the effect or
consequence of the fact that it was not allowed on the ground that it was not executed
in the form required by law in order that it may transmit real and personal property.
Referring to the construction, given by the respondent to sections 618 and 623 of the
Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will,
although the later will has not been allowed by the competent court, it being su cient
that the intention of the testator to revoke the previous will should be clearly expressed,
and that, while the requisite of allowance is necessary in order that it may transmit
property from one person to another, it is not necessary in order that it might produce
other effects, for example, the effect of a revocatory clause, or a clause of
acknowledgment of a child, — what the court declared, we repeat, was that although the
revocation of a will should have been effected, not by means of another will or codicil,
but by means of a document, as authorized by said section 623, which document
should have the requisites and conditions xed in section 618, the presentation of the
document to the court was necessary in order that the latter might allow it, by declaring
that it was executed with the formalities required by law for the execution of a will, and
nally concluding that, just as it must be proved that the requisites of section 618 have
been complied with in order that a will may be of value through its allowance, so
without such allowance the revocatory clause like the other provisions of the will, has
no value or effect except to show extraneous matters, as, for example, the
acknowledgment of natural children, of some debt or obligation. In such case, the
document could produce effect, but not as a will, but simply as a written admission
made by the person executing it. And it is beyond doubt that the revocatory clause
contained in a document, like the present, which contains provisions proper of a will, as
those relating to legacies and distribution of the properties of the testator after his
death as well as the appointment of executors, is not matter extraneous to the will, but
merely a part thereof, intimately connected with it as well as with the will or wills, the
revocation of which is declared in said clause; in short, the desire of the testator
declared in the revocatory clause is related to the desire of the same testator
expressed in the provisions of the testament in which said clause is found and to that
which he might have expressed in the testaments which he may have previously
executed. There is such relation between the revocatory clause and the will which
contains it, that if the will does not produce legal effects, because it has not been
executed in accordance with the provisions of the law, neither would the revocatory
clause therein produce legal effects. And if, in the present case, the so-called will of the
deceased, Simeona F. Naval, dated February 13, 1915, was not duly executed by her, as
her last will and testament, as declared by the court in its decision of November 19,
1915, in case No. 133~6, for which reason its allowance was denied, neither may it be
maintained that the revocatory clause contained in said will is the expression of the last
will of said deceased. The disallowance of the will, therefore, produced the effect of
annulling the revocatory clause, not exactly because said will was not executed in such
form that it could transmit real and personal property, as inaccurately alleged by the
appellant, Monica Naval, to be the court's nding, upon which said assignment of error
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 is based, but because it was proved that said will was not executed or signed with the
formalities and requisites required by section 618 of the Code of Civil Procedure, a
cause which also produces the nullity of the same will, according to section 634 of said
law; and of course what is invalid in law can produce no effect whatever.
"If the instrument propounded as a revocation be in form a will, it must be perfect
as such, and be subscribed and attested as is required by the statute. An instrument
intended to be a will, but failing of its effect as such on account of some imperfection in
its structure or for want of due execution, cannot be set up for the purpose of revoking
a former will." (40 Cyc., p. 1177, and cases cited therein.)
"A subsequent will containing a clause revoking an earlier will must, as a general
rule, be admitted to probate before the clause of revocation can have any effect, and
the same kind, quality, and method of proof is required for the establishment of the
subsequent will as was required for the establishment of the former will." (40 Cyc., p.
1178, and cases cited therein.)
But admitting that the will said to have been executed by the deceased Simeona
F. Naval on February 13, 1915, notwithstanding its ine cacy to transmit property for
the reason that it has not been executed, according to the provisions of said section
618 of the Code of Civil Procedure, should be considered as executed by her in order to
express her desire, appearing in one of its clauses, to revoke and annul any previous will
of hers, as stated in clause 13, this being the argument adduced by the appellant,
Monica Naval, in support of said assignment of error — neither could it be maintained
that, the allowance of said will having been denied by the court on November 11, 1915,
said revocatory clause subsists and the intention expressed by the testatrix therein is
valid and legally effective, for the simple reason that, in order that a will may be revoked
by a document it is necessary, according to the conclusive provisions of section 623 of
said procedural law, that such document be executed according to the provisions
relating to will in section 618, and the will in question, or, according to the respondent,
the so-called document, was not executed according to the provisions of said section,
according to the express nding of the trial court in its order of November 11, 1915,
acquiesced in by the opponent herself, and which is now nal and executory. Therefore,
the disallowance of said will and the declaration that it was not executed according to
the provisions of law as to wills, produced the effect of annulling said revocatory
clause.
In support of the argument advanced in her brief said appellant, Monica Naval,
cites the declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis
(114 Mass., 510, 512), which, according to the appellant herself, was in the following
terms:
"If it be shown that a later will was duly executed and attested, containing
a clause expressly revoking former wills, nothing else appearing as to its contents,
it is nevertheless good as a revocation, but it can only be made available by
setting it up in opposition to the probate of the earlier will."
In the decision of said case the nding referred to be by the appellant appears
not to have been made by the Supreme Court of Massachusetts.
The syllabus of said decision says:
"When a will revoking a former will is in existence, it must be established in
the Probate Court; but when it has been lost or destroyed, and its contents cannot
be sufficiently proved to admit it to probate, it may nevertheless be availed of as a
revocation in opposition to the probate of the will revoked by it."

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 And in the body of the decision there is a declaration, to which the appellant must
have desired to refer in her brief, which declaration says:
"If it can be proved that a later will was duly executed, attested and
subscribed, and that it contained a clause expressly revoking all former wills, but
evidence of the rest of its contents cannot be obtained, it is nevertheless a good
revocation; and it can be made available only by allowing it to be set up in
opposition to the probate of the earlier will," . . ..
The facts of the case in which this decision was rendered are different from the
facts of the case at bar. That was a case concerning a will led by one of the children of
the testatrix, Mary Wallis, as her last will, to the allowance of which another son
objected, alleging that said will had been revoked by another executed by the same
deceased subsequent to the will that was led, and that it had been fraudulently
destroyed or taken by his brother, the proponent and his wife or by one of them, in
order to deprive him of the rights conferred upon him by said will. Therefore, the will
said to have been subsequently executed by the -testatrix and in which, according to the
oppositor, the clause revocatory of the former will appeared, was not presented by said
oppositor, while the previous will was, on the contrary, led for allowance by the son of
the testatrix, who appeared to be favored therein, said oppositor having alleged that the
subsequent will, that is, that containing the revocatory clause, had been drawn,
subscribed and executed in accordance with the provisions of the law, a fact which he
was ready to prove just as he was ready to prove that it had been destroyed or
suppressed by the proponent, his brother and his wife, or one of them. In the case at
bar, the subsequent will containing the revocatory clause of the previous will executed
by the deceased Simeona F. Naval was presented to the court for allowance and it was
disallowed — a fact which gave opportunity to the legatees of said deceased to present
a previous will executed by her on October 31, 1914, and said two wills having been
successively presented, evidence as to them was also successively adduced for their
allowance by the court.
Therefore, the declaration made by the Supreme Court of Massachusetts in
Wallis vs. Wallis (supra), to the effect that a subsequent will containing a revocatory
clause of previous wills, constitutes a valid revocation and may be used in objecting to
the allowance of the previous will, even when it is not possible to obtain proof of the
remainder of the contents of said subsequent will, refers to the case in which the latter
had been taken away, destroyed or suppressed, and it was impossible to present it for
allowance, but requires for that purpose that it be proved that said subsequent will has
been executed, attested, and subscribed in due form and that it contained, furthermore,
that revocatory clause. This is what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray,
in giving its opinion, thus began by saying:
"By our law, no will can be revoked by any subsequent instrument, other
than a 'will, codicil or writing, signed, attested and subscribed in the manner
provided for making a will.' And when an instrument of revocation is in existence
and capable of being propounded for probate, its validity should be tried by a
direct proceeding instituted for the purpose in the Probate Court. (Loughton vs.
Atkins, 1 Pick., 535. )"
It results, therefore, that while perfect parity does not exist between the case
decided by the Supreme Court of Massachusetts, to which the appellant Monica Naval
refers, and that which is now before us, it is wholly unquestionable that, whether the
case deals with a subsequent will revocatory of a previous will, which may possibly be
presented to a probate court for allowance, or of a subsequent will, also revocatory of a
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 previous will, which could not be presented for allowance, because it has been taken or
hidden, or mislaid — in order that such will may constitute a valid revocation and be
utilized in the second case, although the remaining provisions may not be proven, in
opposition to the allowance of the previous will, it is necessary to prove, that it was
executed, attested, and subscribed in due form, and, of course, also that it contained a
clause expressly revoking the previous will, or, what is the same thing, that said
subsequent will had been executed according to the provisions relating to wills, as
expressed in section 623 of the procedural law in force. There can be no doubt
whatever that this applies when the revocation had been made to appear in a writing or
document susceptible of presentation for allowance, like the so-called will of the
deceased Simeona F. Naval, dated February 13, 1915, and considered by said
respondent and appellant as a mere document of revocation, for, as already seen in
said decision invoked by her, the requisite as to signing, attesting, and subscribing in
the form, required by law for the execution of wills in order that it may revoke a previous
will, is also required in a will as well as in a codicil, or in a writing, and in referring to a
document of revocation, it is also expressed that its validity should be proved in a
direct proceeding, instituted for the purpose in a probate court. In the case at bar, the
document, executed by the deceased, Simeona F. Naval, as her last will and testament,
dated February 13, 1915, has been presented for allowance; its validity has been proved
by means of said procedure in the Court of Probate of Manila, and that court denied its
allowance, on the ground that the document in question had not been duly executed by
the deceased, as her last will and testament, because she did not sign in the presence
of three witnesses, and two of these witnesses did not sign in the presence of each
other, or what is the same thing, that said document had not been attested and
subscribed in the manner established by law for the execution of wills, or, in other
words, as provided by law in case of wills, as stated by section 623 of said procedural
law, and this resolution was acquiesced in, as already stated, by the respondents in this
case, and is, therefore, final and executory.
In conclusion, the doctrine laid down in the decision of the Supreme Court of
Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the
provision of said section 623 of our procedural law and article 739 of the Civil Code,
and the will executed by the deceased Simeona F. Naval on October 31, 1914, not
having been revoked, according to these provisions, by the will presented and alleged
as executed by the same deceased subsequently on February 13, 1915, the allowance
of which was denied by the Court of First Instance of Manila, the court below was not in
error in ordering the allowance of said will, that is, of that of October 31, 1914, as the
last will and testament of said deceased.
Wherefore, the order appealed from is a rmed, with the costs of this instance
against the appellants. So ordered.
Arellano, C.J., Torres, Carson, Street and Malcolm, JJ., concur.

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 EN BANC

[G.R. No. L-2538. September 21, 1951.]

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.

JUANA JUAN VDA. DE MOLO , petitioner-appellee, vs . LUZ, GLICERIA
and CORNELIO MOLO , oppositor-appellants.

Claro M. Recto and Serafin C. Dizon, for appellants.

Delgado & Flores, for appellee.

SYLLABUS

1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID REVOCATORY

CLAUSE. — A subsequent will containing a clause revoking a previous will, having been
disallowed for the reason that it was not executed in conformity with the provisions of
section 618 of the Code of Civil Procedure as to the making of wills, cannot produce
the effect of annuling the previous will, inasmuch as said revocatory clause is void
(Samson vs. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. — Even in the
supposition that the destruction of the original will by the testator could be presumed
from the failure of the petitioner to produce it in court, such destruction cannot have the
effect of defeating the prior will where it is founded on the mistaken belief that the later
will has been validly executed and would be given due effect. The earlier will can still be
admitted to probate under the principle of "dependent relative revocation". The theory
on which this principle is predicated is that the testator did not intend to die intestate.
And this intention is clearly manifest where he executed two wills on two different
occasions and instituted his wife as his universal heir.

DECISION

BAUTISTA ANGELO , J : p

This is an appeal from an order of the Court of First Instance of Rizal admitting to
probate the last will and testament of the deceased Mariano Molo y Legaspi executed
on August 17, 1918. The oppositors- appellants brought the case on appeal to this
Court for the reason that the value of the properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or ascending
line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de
Molo, and by his nieces and nephew, the oppositors-appellants, Luz, Gliceria and
Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y
Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one
executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939,
(Exhibit I). The latter will contains a clause which expressly revokes the will executed in
1918.
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 On February 7, 1941, Juana Juan Vda. de Molo led in the Court of First Instance
of Rizal a petition, which was docketed as special proceeding No. 8022, seeking the
probate of the will executed by the deceased on June 20, 1939. There being no
opposition, the will was probated. However, upon petition led by the herein
oppositors, the order of the court admitting the will to probate was set aside and the
case was reopened. After hearing, at which both parties presented their evidence, the
court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, led another petition for the probate of the will executed by the
deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the
same court. Again, the same oppositors led an opposition to the petition based on
three grounds: (1) that petitioner is now estopped from seeking the probate of the will
of 1918; (2) that said will has not been executed in the manner required by law and (3)
that the will has been subsequently revoked. But before the second petition could be
heard, the battle for liberation came and the records of the case were destroyed.
Consequently, a petition for reconstitution was led, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies
required for its reconstitution. As a result, petitioner led a new petition on September
14, 1946, similar to the one destroyed, to which the oppositors led an opposition
based on the same grounds as those contained in their former opposition. Then, the
case was set for trial, and on May 28, 1948, the court issued an order admitting the will
to probate as already stated in the early part of this decision. From this order the
oppositors appealed assigning six errors, to wit:
"I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20, 1939,
in special proceeding No. 8022, in order to enable her to obtain the probate of
another alleged will of Molo dated 1918.
"II. The court a quo erred in not holding that the petitioner is now estopped
from seeking the probate of Molo's alleged will of 1918.
"III. The lower court erred in not holding that petitioner herein has come to
court with 'unclean hands' and as such is not entitled to relief.
"IV. The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
"V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
"VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939."
In their rst assignment of error, counsel for oppositors contend that the
probate court erred in not holding that the petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain
the probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances which in their opinion indicate that petitioner connived
with witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939
will because of her knowledge that said will was intrinsically defective in that "the one
and only testamentary disposition thereof was a 'disposición captatoria'". These
circumstances, counsel for the appellants contend, constitute a series of steps
deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her
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 right to inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in these proceedings which are
entirely new and distinct and completely independent from the other is improper and
unfair as they nd no support whatsoever in any evidence submitted by the parties in
this case. They are merely based on presumptions and conjectures not supported by
any proof. For this reason, counsel contends, the lower court was justi ed in
disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that petitioner
had deliberately intended to frustrate the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other than a mere conjecture drawn from
the apparently unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will and the failure
of petitioner later to impeach the character of said witness in spite of the opportunity
given her by the court to do so. Apart from this insu ciency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court
that she was unable to impeach the character of her witness Canuto Perez because of
her inability to nd witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not now for us to
determine. It is an incident that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio Reyes at the rehearing has also
been explained, and it appears that petitioner has failed because his whereabouts could
not be found. Whether this is true or not is not also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we take stock of the
developments that had taken place in these proceedings which show in bold relief the
true nature of the conduct, behavior and character of the petitioner so bitterly assailed
and held in disrepute by the oppositors.
It should be recalled that the rst petition for the probate of the will executed on
June 20, 1939, was led on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the herein
oppositors, the order of the court admitting said will to probate was set aside, over the
vigorous opposition of the herein petitioner, and the case was reopened. The reopening
was ordered because of the strong opposition of the oppositors who contended that
the will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors led an extensive memorandum wherein they
reiterated their view that the will should be denied probate. And on the strength of this
opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective, because it is a
"disposición captatoria", which knowledge she may easily acquire through consultation
with a lawyer, there was no need for her to go through the ordeal of ling the petition
for the probate of the will. She could accomplish her desire by merely suppressing the
will or tearing or destroying it, and then take steps leading to the probate of the will
executed in 1918. But her conscience was clear and bade her to take the only proper
step possible under the circumstances, which is to institute the necessary proceedings
for the probate of the 1939 will. This she did and the will was admitted to probate. But
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 then the unexpected happened. Over her vigorous opposition, the herein appellants filed
a petition for reopening, and over her vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration was denied. Is it her fault that the
case was reopened? Is it her fault that the order admitting the will to probate was set
aside? That was a contingency which petitioner never expected. Had appellants not
led their opposition to the probate of the will and had they limited their objection to
the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But they failed in their strategy.
If said will was denied probate it is due to their own effort. It is now unfair to impute
bad faith to petitioner simply because she exerted every effort to protect her own
interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants. Indeed,
petitioner cannot be considered guilty of estoppel which would prevent her from
seeking the probate of the 1918 will simply because her effort to obtain the allowance
of the 1939 will has failed considering that in both the 1918 and 1939 wills she was
instituted by her husband as his universal heir. Nor can she be charged with bad faith
far having done so because of her desire to prevent the intestacy of her husband. She
cannot be blamed for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in the
1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and still has
the effect of nullifying the prior will of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in
the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that
case are on all fours with the facts of this case. Hence, the doctrine in that case is here
controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case and we are indeed impressed by their striking similarity with the facts of
this case. We do not need to recite here what those facts are; it is enough to point out
that they contain many points and circumstances in common. No reason, therefore, is
seen why the doctrine laid down in that case (which we quote hereunder) should not
apply and control the present case.
"A subsequent will, containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void." (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while
they do not disagree with the soundness of the ruling laid down in the Samson case,
there is reason to abandon said ruling because it is archaic or antiquated and runs
counter to the modern trend prevailing in American jurisprudence. They maintain that
said ruling is no longer controlling but merely represents the point of view of the
minority and should, therefore, be abandoned, more so if we consider the fact that
section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in
the United States. A long line of authorities is cited in support of this contention. And
these authorities hold the view, that "an express revocation is immediately effective
upon the execution of the subsequent will, and does not require that it rst undergo the
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 formality of a probate proceeding". (p 63, appellants' brief).
While there are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be controlling in the states where the decisions
had been promulgated, however, we are reluctant to fall in line with the assertion that is
now the prevailing view in the United States. In the search we have made of American
authorities on the subject, we found ourselves in a pool of con icting opinions perhaps
because of the peculiar provisions contained in the statutes adopted by each State on
the subject of revocation of wills. But the impression we gathered from a review and
study of the pertinent authorities is that the doctrine laid down in the Samson case is
still a good law. On page 328 of the American Jurisprudence, Vol. 57, which is a revision
published in 1948, we found the following passages which in our opinion truly re ect
the present trend of American jurisprudence on this matter affecting the revocation of
prior wills:
"SEC. 471. Observance of Formalities in Execution of Instrument. —
Ordinarily, statutes which permit the revocation of a will by another writing
provide that to be effective as a revocation, the writing must be executed with the
same formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of a
valid will, an unattested nontestamentary writing is not effective to revoke a prior
will. It has been held that a writing fails as a revoking instrument where it is not
executed with the formalities requisite for the execution of a will, even though it is
inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power
to modify a will by a written instrument subsequently prepared but not executed
in the manner required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. —
A will which is invalid because of the incapacity of the testator or of undue
in uence can have no effect whatever as a revoking will. Moreover, a will is not
revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause
expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is
su cient to revoke a will, for the simple reason that there is no revoking will.
Similarly where the statute provides that a will may be revoked by a subsequent
will or other writing executed with the same formalities as are required in the
execution of wills, a defectively executed will does not revoke a prior will, since it
cannot be said that there is a writing which complies with the statute. Moreover, a
will or codicil which, on account of the manner in which it is executed, is sufficient
to pass only personally does not affect dispositions of real estate made by a
former will, even though it may expressly purport to do so. The intent of the
testator to revoke is immaterial, if he has not complied with the statute." (57 Am.
Jur., 328, 329.)
We nd the same opinion in the American Law Reports, Annotated, edited in
1939. On page 1400, Volume 123, there appear many authorities on the "application of
rules where second will is invalid", among which a typical one is the following:
"It is universally agreed that where the second will is invalid on account of
not being executed in accordance with the provisions of the statute, or where the
testator has not su cient mental capacity to make a will or the will is procured
through undue in uence, or the such, in other words, where the second will is
really no will, it does not revoke the rst will or affect it in any manner." Mort vs.
Baker University (1935) 229 Mo. App., 632, 78 S. W. (2d), 498."
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 These treaties cannot be mistaken. They uphold the view on which the ruling in
the Samson case is predicated. They re ect the opinion that this ruling is sound and
good and for this reason we see no justi cation for abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides
that a will may be revoked "by some will, codicil, or other writing executed as provided
in case of wills"; but it cannot be said that the 1939 will should be regarded, not as a will
within the meaning of said word, but as "other writing executed as provided in the case
of wills", simply because it was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority for holding that unless said
writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur.
pp. 329-330).
But counsel for oppositors contend that, regardless of said revocatory clause,
said will of 1918 cannot still be given effect because of the presumption that it was
deliberately revoked by the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the revocatory clause
contained in said will, himself deliberately destroyed the original of the 1918 will, and
that for this reason the will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The only evidence we have is that when
the rst will was executed in 1918, Juan Salcedo, who prepared it, gave the original and
copies to the testator himself and apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will was denied probate on
November 29, 1943, and petitioner was asked by her attorney to look for another will,
she found the duplicate copy (Exhibit A) among the papers or les of the testator. She
did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because
of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a
duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the rst will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the testator deemed it
wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of
the first will by the testator. This matter cannot be left to mere inference or conjecture.
Granting for the sake of argument that the earlier will was voluntarily destroyed
by the testator after the execution of the second will, which revoked the rst, could
there be any doubt, under this theory, that said earlier will was destroyed by the testator
in the honest belief that it was no longer necessary because he had expressly revoked it
in his will of 1939? In other words, can we not say that the destruction of the earlier will
was but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such
is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".
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 "This doctrine is known as that of dependent relative revocation, and is
usually applied where the testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition is
not made or, if made, fails of effect for some reason. The doctrine is not limited to
the existence of some other document, however, and has been applied where a
will was destroyed as a consequence of a mistake of law . . .." (68 C. J. p. 799).
"The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the e cacy of the new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the e cacy of the new disposition; and if, for any reason, the
new will intended to be made as a substitute is inoperative, the revocation fails
and the original will remains in full force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The failure of the
new testamentary disposition, upon whose validity the revocation depends, is
equivalent to the non-ful llment of a suspensive condition, and hence prevents
the revocation of the original will. But a mere intent to make at some time a will in
place of that destroyed will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new will." (1
Alexander, p. 751; Gardner, p. 233.)
We hold, therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the petitioner to
produce it in court, such destruction cannot have the effect of defeating the prior will of
1918 because of the fact that it is founded on the mistaken belief that the will of 1939
has been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasions and
instituted his wife as his universal heir. There can therefore be no mistake as to his
intention of dying testate.
The remaining question to be determined refers to the su ciency of the
evidence to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Ru no Enriquez, and Angel Cuenca. The rst two witnesses died before the
commencement of the present proceedings. So the only instrumental witness available
was Angel Cuenca and under our law and precedents, his testimony is su cient to
prove the due execution of the will. However, petitioner presented not only the
testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public
who prepared and notarized the will upon the express desire and instruction of the
testator. The testimony of these witnesses shows that the will had been executed in the
manner required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby a rmed, with costs against the
appellants.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.

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 SECOND DIVISION

[G.R. No. 76464. February 29, 1988.]

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA

MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION
MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO , petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND
FELINO MALOTO , respondents.

SYLLABUS

1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF

DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. — The physical act of
destruction of a will, like burning in this case, does not per se constitute an effective
revocation, unless the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under the express direction and in the
presence of the testator. Of course, it goes without saying that the document destroyed
must be the will itself. In this case, while animus revocandi, or the intention to revoke, may
be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus
revocandi is only one of the necessary elements for the effective revocation of a last will
and testament. The intention to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out by the testator or by another
person in his presence and under his express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. — For a judgment to
be a bar to a subsequent case, the following requisites must concur: (1) the presence of a
final former judgment; (2) the former judgment was rendered by a court having jurisdiction
over the subject matter and the parties; (3) the former judgment is a judgment on the
merits; and (4) there is, between the first and the second action, identity of parties, of
subject matter, and of cause of action. We do not find here the presence of all the
enumerated requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. — There is yet, strictly
speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is
concerned. The decision of the trial court in Special Proceeding No. 1736, although final,
involved only the intestate settlement of the estate of Adriana. As such, that judgment
could not in any manner be construed to be final with respect to the probate of the
subsequently discovered will of the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will. After all,
an action for probate, as it implies, is founded on the presence of a will and with the
objective of proving its due execution and validity, something which can not be properly
done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our ruling in G.R. No. L-30479
that the petitioners instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the private respondents on
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 this score can not be sustained.

DECISION

SARMIENTO , J : p

This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been
decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and
mandamus instituted by the petitioners herein, we dismissed the petition ruling that the
more appropriate remedy of the petitioners is a separate proceeding for the probate of
the will in question. Pursuant to the said ruling, the petitioners commenced in the then
Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents presently, Panfilo and Felino,
both surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this Court on a petition
for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing, found
the will to have already been revoked by the testatrix. Adriana Maloto, and thus, denied the
petition. The petitioners appealed the trial court's decision to the Intermediate Appellate
Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1, 1964, the
parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of extrajudicial
settlement of Adriana's estate. The agreement provided for the division of the estate into
four equal parts among the parties. The Malotos then presented the extrajudicial
settlement agreement to the trial court for approval which the court did on March 21,
1964. That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of
Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated January 3, 1940, and purporting
to be the last will and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was submitted to the office of the
clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and
Felino are still named as heirs in the said will, Aldina and Constancio are bequeathed much
bigger and more valuable shares in the estate of Adriana than what they received by virtue
of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives
devises and legacies to other parties, among them being the petitioners Asilo de Molo, the
Roman Catholic Church of Molo, and Purificacion Miraflor.
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 Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees
named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of the will. When the trial court
denied their motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court. 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would
be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not
the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto
Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent court stated that the presence of
animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven.
The appellate court based its finding on the facts that the document was not in the two
safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to
retrieve a copy of the will left in the latter's possession, and, her seeking the services of
Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we
do not view such facts, even considered collectively, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of
the will. The heart of the case lies on the issue as to whether or not the will was revoked by
Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of wills:
or

(3) By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and
by his express direction. If burned, torn, cancelled, or obliterated by some other
person, without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith, if its contents, and
due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per
se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction be
done by the testator himself. It may be performed by another person but under the
express direction and in the presence of the testator. Of course, it goes without saying that
the document destroyed must be the will itself.

In this case, while animus revocandi, or the intention to revoke, may be conceded, for that
is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one
of the necessary elements for the effective revocation of a last will and testament. The
intention to revoke must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by another person in his
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 presence and under his express direction. There is paucity of evidence to show
compliance with these requirements. For one, the document or papers burned by Adriana's
maid, Guadalupe, was not satisfactorily established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven to have been done under the
express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present
at the place where the stove (presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We share the
same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive
that the document burned was indeed Adriana's will. Guadalupe, we think, believed that the
papers she destroyed was the will only because, according to her, Adriana told her so.
Eladio, on the other hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported will is not denied legalization on dubious grounds. Otherwise, the very institution
of testamentary succession will be shaken to its very foundations . . . " 4
The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred by res adjudicata. They
claim that this bar was brought about by the petitioners' failure to appeal timely from the
order dated November 16, 1968 of the trial court in the intestate proceeding (Special
Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will and testament of
the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a
judgment to be a bar to a subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between the first and the second action, identity
of parties, of subject matter, and of cause of action. 5 We do not find here the presence of
all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No.
1736, although final, involved only the intestate settlement of the estate of Adriana. As
such, that judgment could not in any manner be construed to be final with respect to the
probate of the subsequently discovered will of the decedent. Neither is it a judgment on
the merits of the action for probate. This is understandably so because the trial court, in
the intestate proceeding, was without jurisdiction to rule on the probate of the contested
will. 6 After all, an action for probate, as it implies, is founded on the presence of a will and
with the objective of proving its due execution and validity, something which can not be
properly done in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our ruling in G.R. No. L-30479
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 that the petitioners instituted this separate action for the probate of the late Adriana
Maloto's will. Hence, on these grounds alone, the position of the private respondents on
this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the
fact that "(a) major and substantial bulk of the properties mentioned in the will had been
disposed of; while an insignificant portion of the properties remained at the time of death
(of the testatrix); and, furthermore, more valuable properties have been acquired after the
execution of the will on January 3, 1940." 7 Suffice it to state here that as these additional
matters raised by the private respondents are extraneous to this special proceeding, they
could only be appropriately taken up after the will has been duly probated and a certificate
of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision
dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of
Appeals, and a new one ENTERED for the allowance of Adriana Maloto's last will and
testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap, Melencio-Herrera and Paras JJ., concur.
Padilla, J., took no part in the deliberation.
Footnotes

1. Constancio Malot, et al. vs. Hon. Emigdio V. Nietes, etc., et al., May 14, 1969.
2. G.R. No. L-32328.

3. G.R. No. L-30479. supra.

4. Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972, 46 SCRA 538, 565-566,
quoted in: Maninang vs. Court of Appeals, No. L-57848, June 19, 1982, 114 SCRA 78.

5. Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049, April 15, 1985, 135 SCRA 678;
Martinez vs. Court of Appeals, No. L-41425, November 11, 1985, 139 SCRA 558.
6. See Circa Nila Development Corporation, et. al. vs. Hon. Salvador J. Baylen, etc., et al.,
G.R. Nos. 69757-58, January 29, 1988.

7. Rollo, 75.

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