JULIAN SOLLA, ET AL., plaintiffs-appellants, vs. URSULA ASCUETA, ET AL., defendants-appellants. G.R. No.

24955; September 4, 1926; CHAVEZ c/o NILO FACTS: Plaintiffs Rosenda Lagmay and Silvestra Sajor are the surviving legatees of the testratrix Maria Solla; that the plaintiff Julian Solla and Lucia Solla are heirs of Sergio Solla; Ambrosio Lagmay is the heir of the deceased Cayetana Solla; Francisco Serna, 2. and Juana Baclig of the deceased Josefa Solla; Pedro Serna and Agapita Serna of the deceased Jacinto Serna, and that Pedro Garcia is nephew and heir of the deceased Matias Seveda. Defendant Ursula is the widow of the deceased Leandro Serrano; that the other defendants Simeon, Cesario, Santiago, Primitiva and Maxima, surnamed Serrano, are the children and heirs of the said Leandro Serrano, who died on August 5, 1921; that Simeon Serrano is the executor of Leandro Serrano and possesses the property claimed by the plaintiffs. 1. 2. Da. Maria Solla died in June, 1883, leaving a will executed and recorded in accordance with the laws then in force, but which had not been probated in accordance with the Code of Civil Procedure. There were named in said will, as legatees, Sergio Soll, Cayetano Solla, Josefa Solla, Jacinto Serna, Rosenda Lagmay, Silvestra Sajor and Matias Seveda, and Leandro Serrano, as universal heir, with their shares given them by the will above-mentioned. Said legatees or their descendants or heirs did not judicially claim their legacies during the life-time of Leandro Serrano, of which he had taken possession, neither was any testamentary proceeding instituted for the settlement of the estate left by Maria Solla and that Leandro Serrano did not deliver the legacies in question, which he possessed in his name until his death, having declared the property for taxation as his own and collected the income therefrom for himself. That the plaintiffs Julian Solla, Lucia Solla, Ambrosio Lagmay, Rosenda Lagmay, Francisco Serna, Juana Baclig, Pedro Serna, Agapita Serna and Pedro Garcia are the descendants or heirs of some of the original legatees, two of whom are the plaintiffs Silvestra Sajor and Rosenda Lagmay; and the defendants are heirs of Leandro Serrano. That the property of the legacy situated in Cabugao passed into possession of Simeon Serrano by virtue of Leandro Serrano's will as executor thereof, and that said legacies have been and are mixed with other property of the estate of Leandro Serrano. The fifth and sixth assignments of error of defendants raise the question of the true interpretation of the provisions of the last will of the testratix Maria Solla in regard to the obligation imposed upon the universal heir named by her, Leandro Serrano, and of the provisions of the last will of the latter in regard to the obligation imposed by him upon his heir, and executor Simeon Serrano, one of the herein defendants-appellants. a. Defendant contended that the trial court erred in interpreting and holding that paragraph 3 of Leandro Serrano's will, Exhibit C, ordered the delivery of the legacies left by Maria Solla in her will Exhibit B, to the plaintiffs, and that said paragraph affects each and everyone of the parcels of land in the property deeds of Leandro Serano, Exhibits 1, 2, 3, 4, 5, 6, and 7, and in holding that the said paragraph 3 of Leandro Serrano's will cancels all of the rights acquired by him, and is the immediate cause of the action brought by the plaintiffs; The following are the pertinent parts of Maria Solla's will: I desire and hereby name Leandro Serrano, my grandson, as my universal heir who is a legitimate son of my son Modesto Solosa, and is single; and I desire him to comply with the obligation to give or deliver to the parish priest of this town a sufficient sum of money necessary for a yearly novena for an ordinary require mass for the first eight days thereof and on the ninth, or last day, a solemn requiem mass, with vigil and a large bier, for these masses and for the repose of my soul and those of my parents, husband, children and other relatives. I repeat and insist that my heir shall execute and comply with this request without fail. And at the hour of his death he will insist that his heirs comply with all that I have here ordered. -

3.

4.

5.

6.

7.

8.

The pertinent parts of the will of Leandro Serrano (Exhibit C) are as follows: I command my executor to put all of my property in order, separating first the property of his deceased grandmother Capitana Maria Solla, because she directed in her will that her property be distributed strictly in conformity with her wishes and as she earnestly requested the compliance of her bequests I obligate my heirs to comply with the same; On occupation of the fact that all of the property of the deceased Capitana Solla was given to my son Simeon I order him not to forget annually all the souls of the relatives of my grandmother and also of nine and to have a mass said on the first and ninth days of the yearly novena and that he erect a first class bier. I insistently order that the property of my deceased grandmother Capitana Maria be disposed of in conformity with all the provisions of her will and of mine. As may be seen Maria Solla named grandson Leandro Serrano in her will as her universal heir to her property and ordered him to strictly comply with her orders and requests and that at the hour of his death to make the same insistence upon his heirs to comply with all that she has ordered. a. As may also be seen Leandro Serrano named his son Simeon Serrano, as executor of his will and that he directed him to put all of his property in order and to separate that which came from his deceased grandmother Maria Solla, which he gives to his said son Simeon Serrano and orders that same be disposed of exclusively in conformity with the wishes of his said grandmother, not forgetting the souls of all of his grandmother's relatives and of his own for whose repose nine masses were to be said annually during nine days, with a solemn mass on the first and last days.

9.

ISSUE: Interpretation of Solla and Serranos wills. what are the orders and requests that Maria Solla wanted the universal heir named by her in her will, Leandro Serrano, to faithfully comply with and to make his heirs comply with, and what are the orders of Maria Solla which Leandro Serrano ordered his executor and heir Simeon Serrano to comply with? RULING: 1) In the first place, there is the distribution of the legacies given in her will to her brothers, nephew, protegees and servant. 2) In the second place, the delivery of a sufficient sum of money to the parish of Cabugao for the annual novena, consisting of eight ordinary masses and one solemn requiem mass, together with vigil and bier on the last day for the repose of the soul of the testratix and her parents, children, husband and other relatives; 3) and in the third place, the order that Leandro Serrano demand, with the same insistence, that this heirs comply with all that she had ordered. Leandro Serrano have complied with all of these commands and orders during his lifetime, some wholly and others partially. The orders and requests that he could and should have fully complied with during his lifetime were to distribute the legacies and to order his heirs to comply with all her wishes specified in her will. The order or request that he was able to comply with only partially was to deliver to the parish priest a sufficient sum of money necessary for the annual masses for the repose of the soul of Maria Solla and her parents, husband, children and other relatives. It is not logical to suppose that Maria Solla in ordering Leandro Serrano to insist in his will that his heirs after his death comply with all the requests contained in her said will, referred to the orders and requests that he could and should comply with during his lifetime, because neither is it logical nor reasonable to suppose that she for a moment doubted that the person whom she had named as her universal heir for, according to her, he was the only person in whom she had any confidence would comply with her requests.

If that is so, Maria Solla could not have referred to other than the pious orders and requests, because, by reason of their nature, they were the only ones which Leandro Serrano could not wholly comply with during his lifetime, but that his heirs would continue to do so. And Leandro Serrano, in complying with the requests of Maria Solla in his will by ordering his son Simeon Serrano, to whom he bequeathed all of the property received from the former, to comply with all of the requests of the same, could not have meant but those requests which Maria Solla wished complied with by the heirs of Leandro Serrano which are those relating to the pious bequests. She confirms this on the fifth clause of her will quoted above, in which she says: "On account of the fact that all the property of the deceased Capitana Solla is bequeathed to my son Simeon I order him not to forget the souls of my grandmother's relatives." From this is evidently appears that Leandro Serrano bequeathed all of the property of the deceased Maria Solla to his son Simeon Serrano only in order that he might comply with her pious requests. Furthermore if to ease his conscience it had been Leandro Serrano's desire to deliver the aforesaid legacies to the legatees or to their successors in interest he would have done so during his lifetime or would have said so clearly in his will and would not have given all of his said property to his son Simeon Serrano.

In order to determine the testator's intention, the court should place itself as near as possible in his position, and hence, where the language of the will is ambiguous or doubtful, should take into consideration the situation of the testator and the facts and circumstances surrounding him at the time the will executed. Where the testator's intention is manifest from the context of the will and surrounding circumstances, but is obscured by inapt and inaccurate modes of expression, the language will be subordinated to the intention, and in order to give effect to such intention, as far as possible, the court may depart from the strict wording and read word or phrase in a sense different from that which is ordinarily attributed to it, and for such purpose may mold or change the language of the will. such as restricting its application or supplying omitted words or phrases. In the present case, it clearly appearing that it was Mari Solla's intention, in ordering her universal heir Leandro Serrano in her will at the hour of his death, to insist upon the compliance of her orders by his heirs, that the latter should comply with her pious orders and that she did not mean her orders concerning her legacies, the compliance of which she had entrusted to Leandro Serrano, we are authorized to restrict the application of the words "all that I have here ordered" used by the said Maria Solla and the words "all her orders" used by Leandro Serrano in their respective wills limiting them to the pious orders and substituting the phrase "in regard to the annual masses" after the words used by both testators, respectively. The trial court, therefore, committed an error in interpreting the order to Leandro Serrano mentioned in his will as applicable to the provisions of Maria Solla's will relative to the legacies and not to pious bequests exclusively.

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L. MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA, JR., and RAFAEL TITCO, petitioners, vs. LORENZO LAXA, respondent. G.R. No. 174489. April 11, 2012 (Kim) DEL CASTILLO, J.: Facts:

1.

Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli Nang Bilin o Testamento Miss Paciencia Regala (Will) in the Pampango dialect on September 13, 1981. a. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. b. Paciencia expressed in the presence of the instrumental witnesses that the document is her last will and testament. She thereafter affixed her signature at the end of the said document on page 3 and then on the left margin of pages 1, 2 and 4 thereof. 2. The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). a. The 3 attested to the Wills due execution by affixing their signatures be low its attestation clause and on the left margin of pages 1, 2 and 4 thereof, in the presence of Paciencia and of one another and of Judge Limpin who acted as notary public. 3. Childless and without any brothers or sisters, Paciencia bequeathed all her properties to respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna Lorella Laxa and Katherine Ross Laxa. 4. Lorenzo is Paciencias nephew whom she treated as her own son. a. Conversely, Lorenzo came to know and treated Paciencia as his own mother. b. Paciencia lived with Lorenzos family in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his birth. c. Six days after the execution of the Will or on September 19, 1981, Paciencia left for the US. d. There, she resided with Lorenzo and his family until her death on January 4, 1996. 5. In the interim, the Will remained in the custody of Judge Limpin. 6. More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a petition with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the issuance of Letters of Administration in his favor. 7. On June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an opposition to Lorenzos petition. a. Antonio averred that the properties subject of Paciencias Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no right to bequeath them to Lorenzo. 8. On July 20, 2000, Antonio, now joined by petitioners Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition contending that Paciencias Will was null and void because ownership of the properties had not been transferred and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil Code. 9. Petitioners also opposed the issuance of Letters of Administration in Lorenzos favor arguing that Lorenzo was disqualified, he being a citizen and resident of the USA. 10. On September 26, 2000, petitioners filed an Amended Opposition asking the RTC to deny the probate of Paciencias Will on the following grounds: a. the Will was not executed and attested to in accordance with the requirements of the law; b. that Paciencia was mentally incapable to make a Will at the time of its execution; c. that she was forced to execute the Will under duress or influence of fear or threats; d. that the execution of the Will had been procured by undue and improper pressure and influence by Lorenzo or by some other persons for his benefit; e. that the signature of Paciencia on the Will was forged; f. that assuming the signature to be genuine, it was obtained through fraud or trickery; and, that Paciencia did not intend the document to be her Will.

11. On January 29, 2001, the RTC issued an Order denying the requests of both Lorenzo and Antonio to be appointed administrator since the former is a citizen and resident of the USA while the latters claim as a co-owner of the properties subject of the Will has not yet been established. 12. For petitioners, Rosie testified that her mother and Paciencia were first cousins. a. She claimed to have helped in the household chores in the house of Paciencia thereby allowing her to stay therein from morning until evening and that during the period of her service in the said household, Lorenzos wife and his children were staying in the same house. b. Rosie testified that Paciencia was referred to as magulyan or forgetful because she would sometimes leave her wallet in the kitchen then start looking for it moments later. c. On cross examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia was magulyan was based on her personal assessment, and that it was Antonio who requested her to testify in court. 13. In his direct examination, Antonio stated that Paciencia was his aunt. a. He identified the Will and testified that he had seen the said document before because Paciencia brought the same to his mothers house and showed it to him along with another document on September 16, 1981. b. Antonio alleged that when the documents were shown to him, the same were still unsigned. c. According to him, Paciencia thought that the documents pertained to a lease of one of her rice lands, and it was he who explained that the documents were actually a SPA to lease and sell her fishpond and other properties upon her departure for the USA, and a Will which would transfer her properties to Lorenzo and his family upon her death. d. Upon hearing this, Paciencia allegedly uttered the following words: Why will I never *return+, why will I sell all my properties? Who is Lorenzo? Is he the only *son+ of God? I have other relatives *who should+ benefit from my properties. Why should I die already? e. Thereafter, Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter purportedly replied, I know nothing about those, throw them away or it is up to you. The more I will not sign them. f. After which, Paciencia left the documents with Antonio. Antonio kept the unsigned documents and eventually turned them over to Faustino on September 18, 1981. 14. The RTC disallowed the notarial will. a. It gave considerable weight to the testimony of Rosie and concluded that at the time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of mind to have testamentary capacity. 15. the CA reversed the RTC Decision and granted the probate of the Will of Paciencia. a. The appellate court did not agree with the RTCs conclusion th at Paciencia was of unsound mind when she executed the Will. b. It ratiocinated that the state of being magulyan does not make a person mentally unsound so as to render Paciencia unfit for executing a Will. c. Moreover, the oppositors in the probate proceedings were not able to overcome the presumption that every person is of sound mind. Issue: WON the probate of the will should be disallowed on the ground that the testator was of unsound mind during the execution of the will Held: NO Reason:

1. 2. 3.

4. 5. 6.

A careful examination of the face of the Will shows faithful compliance with the formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental witnesses and the notary public, are all present and evident on the Will. Further, the attestation clause explicitly states the critical requirement that the testatrix and her instrumental witnesses signed the Will in the presence of one another and that the witnesses attested and subscribed to the Will in the presence of the testator and of one another. In fact, even the petitioners acceded that the signature of Paciencia in the Will may be authentic although they question her state of mind when she signed the same as well as the voluntary nature of said act. The burden to prove that Paciencia was of unsound mind at the time ofthe execution of the will lies on the shoulders of the petitioners. We agree with the position of the CA that the state of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to execute a Will. Forgetfulness is not equivalent to being of unsound mind.

Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. 7. In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound mind at the time of the execution of the Will. 8. On the other hand, we find more worthy of credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went to Judge Limpins house and voluntarily executed the Will. 9. The testimony of subscribing witnesses to a Will concerning the testators m ental condition is entitled to great weight where they are truthful and intelligent. 10. More importantly, a testator is presumed to be of sound mind at the time of the execution of the Will and the burden to prove otherwise lies on the oppositor. Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. 11. Here, there was no showing that Paciencia was publicly known to be insane one month or less before the making of the Will. 12. Clearly, thus, the burden to prove that Paciencia was of unsound mind lies upon the shoulders of petitioners. 13. However and as earlier mentioned, no substantial evidence was presented by them to prove the same, thereby warranting the CAs finding that petitioners failed to discharge such burden.

21. NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P. HONORADO of the Court of First Instance of Rizal, Pasig Branch 25 and EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

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

Facts: 1. Mauro Suroza, a corporal in the 45th Infrantry of the US Army married Marcelina Salvador. They were childless. But they reared a boy named Agapito and considered him as his child as shown in their marriage certificate. 2. Mauro died. Marcelina, a veteran's widow, became a pensioner of the Federal government. 3. Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad. However, he became disabled and his wife Nenita was appointed as his guardian. 4. A woman named Arsenia de la Cruz (Agapito's girlfriend) also wanted to be his guardian. 5. Judge Tan dismissed the second guardianship proceeding and confirmed Nenita's appointment as guardian. 6. Spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy who was entrusted to Arsenia dela Cruz. Marilyn was later delivered to Marcelina who brought her up as a supposed daughter of Agapito and her granddaughter. Marilyn stayed with Marcelina even if she was not legally adopted by Agapito. 7. Marcelina supposedly executed a notarial will when she was 73 years old. The will was in English and was thumbmarked by her. Marcelina was illiterate. In this notarial will, Marcelina bequeathed all her estate to her supposed granddaughter Marilyn. 8. Marcelina died. 9. Marina Paje, the laundrywoman of Marcelina and executrix of her will, filed a petition for probate of Marcelina's will. 10. Judge Honorado instructed the deputy sheriff to eject the occupants of the testatrix's house, including Nenita, and to place Marina in possession thereof and instituted Marilyn as the heiress. 11. Nenita filed a petiiton to set aside the proceedings and argued that the institution of Marilyn as the heir is void because of the preterition of Agapito. 12. However, this was dismissed by Judge Honorado. 13. Nenita charged Judge Honorado with having probated the fraudulent will of Marcelina because the testatrix Marcelina was illiterate and she did not know English, the language in which the will was written. Also, Judge Honorado did not take into account the consequences the preterition of Agapito as the testatrix's supposed sole compulsory and legal heir. 14. Hence, a complaint against Judge Honorado was brought to Court. 15. Nenita filed in the Court of Appeals a petition for certiorari and prohibition where she prayed that the decree of probate and all the proceedings in the probate case be declared void. Issue: Should disciplinary action be taken against respondent judge for having admitted to probate a will, which on its face is void because it is written in English, a language not known to the illiterate testatrix, and which is probably a forged will because she and the attesting witnesses did not appear before the notary as admitted by the notary himself?

Held: Yes.

Ruling: 1. We hold that disciplinary action should be taken against respondent judge for his improper disposition of the testate case which might have resulted in a miscarriage of justice because the decedent's legal heirs and not the instituted heiress in the void win should have inherited the decedent's estate. 2. In this case, respondent judge, on perusing the will and noting that it was written in English and was thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void. 3. In the opening paragraph of the will, it was stated that English was a language "understood and known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is void because of the mandatory provision of article 804 of the Civil Code that every will must be executed in a language or dialect known to the testator. Thus, a will written in English, which was not known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660). 4. The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix". 5. Had respondent judge been careful and observant, he could have noted not only the anomaly as to the language of the will but also that there was something wrong in instituting the supposed granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive. 6. Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge could have noticed that the notary was not presented as a witness. 7. In spite of the absence of an opposition, respondent judge should have personally conducted the hearing on the probate of the will so that he could have ascertained whether the will was validly executed. Disposition: Judge Honorado was imposed a penalty equivalent to his salary for one month for inefficiently handing the testate case of Marcelina Suroza.

Garcia vs. Lacuesta RICO

In the Matter of the summary settlement of the Estate of the deceased ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee, vs. EUSEBIA ABELLANA, et al., oppositors-appellants. G.R. No. L-15153 | August 31, 1960 | NILO FACTS: 1) It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be probated, is written in the Spanish language and consists of two (2) typewritten pages double space. 2) The first page is signed by Juan Bello and under his name appears typewritten "Por la testadora Anacleta Abellana, residence Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', (By the testatrix Anacleta Abellana) and on the second page appears the signature of three (3) instrumental witnesses Blas

Sebastian, Faustino Macaso and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and below his signature is his official designation as the notary public who notarized the said testament. a. On the first page on the left margin of the said instrument also appear the signatures of the instrumental witnesses. b. On the second page, which is the last page of said last Will and Testament, also appears the signature of the three (3) instrumental witnesses and on that second page on the left margin appears the signature of Juan Bello under whose name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. ISSUE: Does the signature of Dr. Juan A. Abello above the typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law prescribing the manner in which a will shall be executed? HELD: the said will of the deceased Anacleta Abellana may not be admitted to probate. Article 805 of the Civil Code, in part provides as follows: 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 witness in the presence of the testator and of one another. the important thing is that it clearly appears that the name of the testatrix was signed at her express direction; it is unimportant whether the person who writes the name of the testatrix signs his own or not. In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the express requirement in the law that the testator must himself sign the will, or that his name be affixed thereto by some other person in his presence and by his express direction.

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant. G.R. No. L-5971;February 27, 1911; J.Carson (Bon) Doctrine: The position of the parties must be such that with relation to each other at the moment of the attaching the signatures, they may see each other sign if they chose to. Facts 1. When the will was executed, it was in a large room connecting with a smaller room by a doorway where a curtain hangs across 2. One of the witnesses was in the outside room when the other witnesses were attaching their signatures to the instrument. 3. The trial court did not consider the determination of the issue as to the position of the witness as of vital importance in determining the case.

4. It agreed with the ruling in the case of Jaboneta v. Gustillo that the alleged fact being that one of the subscribing witnesses was in the outer room while the signing occurred in the inner room, would not be sufficient to invalidate the execution of the will. Issue: Should the witness be considered as to have seen the act of signing the will? Held: YES The position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign.

Taboada Rosal vs. Rosal CELLES

MANUEL A. ECHAVEZ, Petitioner, vs. DOZEN CONSTRUCTION AND DEVELOPMENT CORPORATION and THE REGISTER OF DEEDS OF CEBU CITY, Respondents. G.R. No. 192916, October 11, 2010 BRION, J.: FACTS: 1. Vicente Echavez (Vicente) was the absolute owner of several lots in Cebu City, which includes Lot No. 1956-A and Lot No. 1959 (subject lots). 2. On September 7, 1985, Vicente donated the subject lots to petitioner Manuel Echavez (Manuel) through a Deed of Donation Mortis Causa. Manuel accepted the donation. 3. In March 1986, Vicente executed a Contract to Sell over the same lots in favor of Dozen Construction and Development Corporation (Dozen Corporation). a. In October 1986, they executed two Deeds of Absolute Sale over the same properties covered by the previous Contract to Sell. 4. On November 6, 1986, Vicente died. 5. Emiliano Cabanig, Vicentes nephew, filed a petition for the settlement of Vicentes intestate estate. On the other hand, Manuel filed a petition to approve Vicentes donation mortis causa in his favor and a n

6.

7.

1.

action to annul the contracts of sale Vicente executed in favor of Dozen Corporation. These cases were jointly heard. The Regional Trial Court (RTC) dismissed Manuels petition to approve the donation and his action for annulment of the contracts of sale. a. The RTC found that the execution of a Contract to Sell in favor of Dozen Corporation, after Vicente had donated the lots to Manuel, was an equivocal act that revoked the donation. The Court of Appeals (CA) affirmed the RTCs decision. The CA held that since the donation in favor of Manuel was a donation mortis causa, compliance with the formalities for the validity of wills should have been observed. a. The CA found that the deed of donation did not contain an attestation clause and was therefore void. On his petition for review on certiorar, Manuel argues that the CA should have applied the rule on substantial compliance in the construction of a will to Vicentes d onation mortis causa. a. He insists that the strict construction of a will was not warranted in the absence of any indication of bad faith, fraud, or substitution in the execution of the Deed of Donation Mortis Causa. b. He argues that the CA ignored the Acknowledgment portion of the deed of donation, which contains the "import and purpose" of the attestation clause required in the execution of wills. The Acknowledgment reads: i. BEFORE ME, Notary Public, this 7th day of September 1985 at Talisay, Cebu, personally appeared VICENTE S. Echavez with Res. Cert. No. 16866094 issued on April 10, 1985 at [sic] Talisay, Cebu known to me to be the same person who executed the foregoing instrument of Deed of Donartion Mortis Causa before the Notary Public and in the presence of the foregoing three (3) witnesses who signed this instrument before and in the presence of each other and of the Notary Public and all of them acknowledge to me that the same is their voluntary act and deed. [Emphasis in the original.]

ISSUE: Whether the CA is correct in its conclusion that since the donation in favor of Manuel was a donation mortis causa, compliance with the formalities for the validity of wills should have been observed? YES HELD: The CA correctly declared that a donation mortis causa must comply with the formalities prescribed by law for the validity of wills, "otherwise, the donation is void and would produce no effect." o Articles 805 and 806 of the Civil Code should have been applied. As the CA correctly found, the purported attestation clause embodied in the Acknowledgment portion does not contain the number of pages on which the deed was written. o The exception to this rule in Singson v. Florentino and Taboada v. Hon. Rosal, cannot be applied to the present case, as the facts of this case are not similar with those of Singson and Taboada. o In those cases, the Court found that although the attestation clause failed to state the number of pages upon which the will was written, the number of pages was stated in one portion of the will. This is not the factual situation in the present case. Even granting that the Acknowledgment embodies what the attestation clause requires, we are not prepared to hold that an attestation clause and an acknowledgment can be merged in one statement. o That the requirements of attestation and acknowledgment are embodied in two separate provisions of the Civil Code (Articles 805 and 806, respectively) indicates that the law contemplates two distinct acts that serve different purposes. An acknowledgment is made by one executing a deed, declaring before a competent officer or court that the deed or act is his own. On the other hand, the attestation of a will refers to the act of the instrumental witnesses themselves who certify to the execution of the instrument before them and to the manner of its execution.

 Although the witnesses in the present case acknowledged the execution of the Deed of Donation Mortis Causa before the notary public, this is not the avowal the law requires from the instrumental witnesses to the execution of a decedents will. o An attestation must state all the details the third paragraph of Article 805 requires. o In the absence of the required avowal by the witnesses themselves, no attestation clause can be deemed embodied in the Acknowledgement of the Deed of Donation Mortis Causa. DISPOSITION: Finding no reversible error committed by the CA, the Court hereby DENIES Manuels petition for review on certiorari.

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE LAST WILL AND TESTAMENT OF ENRIQUE S. LOPEZ RICHARD B. LOPEZ, Petitioner, vs. DIANA JEANNE LOPEZ, MARYBETH DE LEON and VICTORIA L. TUAZON, Respondents. G.R. No. 189984 PERLAS-BERNABE, J.: Facts: 1. On June 21, 1999, Enrique S. Lopez (Enrique) died leaving his wife, Wendy B. Lopez, and their four legitimate children, namely, petitioner Richard B. Lopez (Richard) and the respondents Diana Jeanne Lopez (Diana), Marybeth de Leon (Marybeth) and Victoria L. Tuazon (Victoria) as compulsory heirs. Before Enriques death, he executed a Last Will and Testament on August 10, 1996 and constituted Richard as his executor and administrator. On September 27, 1999, Richard filed a petition for the probate of his father's Last Will and Testament before the RTC of Manila with prayer for the issuance of letters testamentary in his favor. Marybeth opposed the petition contending that the purported last will and testament was not executed and attested as required by law, and that it was procured by undue and improper pressure and influence on the part of Richard. The said opposition was also adopted by Victoria. Richard presented the attesting witnesses, namely: Reynaldo Maneja; Romulo Monteiro; Ana Maria Lourdes Manalo (Manalo); and the notary public who notarized the will, Atty. Perfecto Nolasco (Atty. Nolasco). a. The instrumental witnesses testified that after the late Enrique read and signed the will on each and every page, they also read and signed the same in the latter's presence and of one another. b. Photographs of the incident were taken and presented during trial. Manalo further testified that she was the one who prepared the drafts and revisions from Enrique before the final copy of the will was made. c. Likewise, Atty. Nolasco claimed that Enrique had been his client for more than 20 years. d. He prepared the will in accordance with Enrique's instruction and that before the latter and the attesting witnesses signed it in the presence of one another, he translated the will which was written in English to Filipino and added that Enrique was in good health and of sound mind at that time. Ruling of the RTC a. the RTC disallowed the probate of the will for failure to comply with Article 805 of the Civil Code which requires a statement in the attestation clause of the number of pages used upon which the will is written. b. It held that while Article 809 of the same Code requires mere substantial compliance of the form laid down in Article 805 thereof, the rule only applies if the number of pages is reflected somewhere else in the will with no evidence aliunde or extrinsic evidence required. November 12, 2012 (Kim)

2. 3. 4.

5.

6.

7.

While the acknowledgment portion stated that the will consists of 7 pages including the page on which the ratification and acknowledgment are written, the RTC observed that it has 8 pages including the acknowledgment portion. d. As such, it disallowed the will for not having been executed and attested in accordance with law. Ruling of the Court of Appeals a. on the merits, the CA found no valid reason to deviate from the findings of the RTC that the failure to state the number of pages of the will in the attestation clause was fatal.

c.

Issue: WON the omission of the number of pages in the attestation is fatal to the validity of the will Held: YES Reason: 1. The law is clear that the attestation must state the number of pages used upon which the will is written. The purpose of the law is to safeguard against possible interpolation or omission of one or some of its pages and prevent any increase or decrease in the pages. While Article 809 allows substantial compliance for defects in the form of the attestation clause, Richard likewise failed in this respect. a. The statement in the Acknowledgment portion of the subject last will and testament that it "consists of 7 pages including the page on which the ratification and acknowledgment are written" cannot be deemed substantial compliance. b. The will actually consists of 8 pages including its acknowledgment which discrepancy cannot be explained by mere examination of the will itself but through the presentation of evidence aliunde. On this score is the comment of Justice J.B.L. Reyes regarding the application of Article 809, to wit: a. The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear in each and every page; whether the subscribing witnesses are three or the will was notarized. b. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the attestation clause can be safely disregarded. c. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the attestation clause, being the only check against perjury in the probate proceedings. Hence, the CA properly sustained the disallowance of the will.

2.

3.

4.

28. IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.

G.R. No. L-18979 - June 30, 1964 - Reyes, JBL

Facts: 1. June 2, 1956- Josefa Villacorte executed a last will and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano. This was published and attested by three instrumental witnesses:

2. 3.

4.

5.

6.

Atty. Justo Torres, Atty. Jose Natividad and Mr. Vinicio Diy. The will was ill was acknowledged by the testatrix and by the said three instrumental witnesses on the same date before attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by attorney Fermin Samson, who was also present during the execution and signing of the decedent's last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross examination that he prepared one original and two copies of Josefa Villacorte last will and testament at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila, retaining one unsigned copy in Bulacan. Josefa Villacorte died in the City of Manila The records show that the original of the will, which was surrendered simultaneously with the filing of the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting witnesses in each and every page. Based on the testimony presented by the proponents of the will, the original and its duplicate were subscribed at the end and on the left margin of each and every page thereof by the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's presence and in that of one another as witnesses (except for the missing signature of attorney Natividad on page three (3) of the original); that pages of the original and duplicate of said will were duly numbered; that the attestation clause thereof contains all the facts required by law to be recited therein and is signed by the aforesaid attesting witnesses; that the will is written in the language known to and spoken by the testatrix that the attestation clause is in a language also known to and spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and that both the original and the duplicate copies were duly acknowledged before Notary Public Jose Oyengco of Manila on the same date June 2, 1956. Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he may have lifted two pages instead of one when he signed the same, but affirmed that page three (3) was signed in his presence. Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same occasion as the original, and further aver that granting that the documents were genuine, they were executed through mistake and with undue influence and pressure because the testatrix was deceived into adopting as her last will and testament the wishes of those who will stand to benefit from the provisions of the will

Issue: Whether the will may still be probated even if there was an inadvertent failure of one witness to affix her signature to one page of the testament due to "simultaneous lifting of two pages in the court of signing?

Held: Yes.

Ruling: 1. The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not only the fact that the testatrix and two other witnesses did sign the defective page, but also by its bearing the coincident imprint of the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses may sabotage the will by muddling or bungling it or the attestation clause". 2. That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set of signatures in every page. The text of the attestation clause and the acknowledgment before the Notary Public likewise evidence that no one was aware of the defect at the time. 3. This would not be the first time that this Court departs from a strict and literal application of the statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the legal requirements in order to guard against fraud and bid faith but without undue or unnecessary curtailment of the testamentary privilege. Disposition: Decision appealed from is affirmed with costs against appellants.

Cruz vs. Villasor RICO

JOSE ANTONIO GABUCAN, vs. HON. JUDGE LUIS D. MANTA, JOSEFA G. VDA. DE YSALINA and NELDA G. ENCLONAR, No. L-51546. January 28, 1980.* Doctrine: Failure to affix a 30-centavo documentary stamp on a will not a fatal defect as the probate court can require the proponent to affix the required documentary stamp to the notarial acknowledgment of the will; Nonadmissibility of a document without the requisite documentary stamps subsists and the requisite stamps shall have been affixed thereto and cancelled. [Gabucan vs. Manta, 95 SCRA 752(1980)]

FACTS:

1.

This case is about the dismissal of a petition for the probate of a notarial will on the ground that it does not bear a thirtycentavo documentary stamp.

ISSUE: Whether or not the DST should be affixed to make the will valid. HELD: We hold that the lower court manifestly erred in declaring that, because no documentary stamp was affixed to the will, there was no will and testament to probate and, consequently, the alleged action must of necessity be dismissed. What the probate court should have done was to require the petitioner or proponent to affix the requisite thirty-centavo documentary stamp to the notarial acknowledgment of the will which is the taxable portion of that document. Thus, it was held that the documentary stamp may be affixed at the time the taxable document is presented in evidence (Del Castillo vs. Madrilena, 49 Phil. 749).

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA, petitioner-appellee, vs. DOA MATEA LEDESMA, oppositor-appellant G.R. No. L-7179; June 30, 1955; JBL Reyes (Bon) Doctrine: It is not required that the testator, witnesses and the notary public do the signing in a single act. Facts: 1. Codicil and Will of deceased Apolinaria Ledesma was admitted for probate at the CFI of Iloilo in July 1953. It was deemed executed on March 1950 and May 1952. It is now being contested by the sister and the nearest relative of Ledesma. According to the sister (Da. Matea Ledesma), the will was not executed in accordance with the law. 2. The contestant argues that the Court below erred in refusing credence to her witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had brought the "testamento" and urge her to go to attorney Tabiana's office to sign it. 3. Da. Apolinaria manifested that she could not go, because she was not feeling well; and that upon Yap's insistence that the will had to be signed in the attorney's office and not elsewhere, the deceased took the paper and signed it in the presence of Yap alone, and returned it with the statement that no one would question it because the property involved was exclusively hers. 4. Another allegation was that the certificate of acknowledgement to the codicil was signed somewhere else or in the office of the notary. The ix and the witnesses at the hospital, was signed and sealed by the notary only when he brought it in his office Issue: Does the will and codicil follow the prescribed manner of notarization? Held: YES.

Unlike in the Old Civil Code of 1899, the NCC does not require that the signing of the testator, the witnesses and the notary be accomplished in one single act. All that is required is that every will must be acknowledged before a notary public by the testator and witnesses.. A comparison of Articles 805 and 806 of the new Civil Code reveals that while testator and witnesses sign in the presence of each other, all that is thereafter required is that "every will must be acknowledged before a notary public by the testator and the witnesses" (Art. 806); i.e., that the latter should avow to the certifying officer the authenticity of their signatures and the voluntariness of their actions in executing the testamentary disposition. The subsequent signing and sealing by the notary of his certification that the testament was duly acknowledged by the participants therein is no part of the acknowledgment itself nor of the testamentary act. Hence their separate execution out of the presence of the testatrix and her witnesses cannot be said to violate the rule that testaments should be completed without interruption

Decision: The decision admitting the will to probate is affirmed, with costs against appellant.
Gonzales vs. CA CELLES Garcia vs. Vasquez G.R. No. L-26884, April 30, 1970, Reyes, J.B.L, J. FACTS: 1. Testator: Gliceria Avelino del Rosario Died unmarried Left no descendants, ascendants, brothers or sisters At the time of her death, she was said to be 90 years old more or less Possessed of an estate consisting mostly of real properties 2. 2 wills allegedly executed: 1956 will o 12 pages o Written in Spanish (which she knew and spoke) o 3 witnesses o Acknowledged before the notary 1960 will o 1 page o Tagalog o 3 witnesses o Acknowledged before the notary o Special administratix husband actively participated in execution Requested people to witness Submitted the residence certificates to the notary, which he collected prior Aided testator when she walked Deed was already prepared Physician: testator had possible glaucoma (leads to blindness) Would that grade enable patient to read print? Apparently that is only a record for distance vision, for distance sight, not for print. She read the will silently Done in haste and done without any regard for the defective vision

3.

Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, so much so that the words had to be written very close to the top, bottom and two sides of the paper, leaving no margin The word and had to be written by the symbol &, apparently to save on space Typographical errors like HULINH for HULING (last), Alfonsa for Alfonso, MERCRDRS for MERCEDES, instrumental for Instrumental, and acknowledged for acknowledge, remained unconnected Consuelo S. Gonzales Vda. de Precilla, niece of Gliceria, petitioned for probate of the 1960 will, and for her appointment as special administratrix Opposed separately by several groups of heirs, and among them were persons claiming to be relatives th within the 5 civil degree The oppositions invariably charged that the instrument executed in 1960 was not intended by the deceased to be her true will. Prayed the court for an order, directing the Special Administratrix to deposit with the Clerk of Court all certificates of title belonging to the estate. It was alleged that after her appointment, Consuelo, in her capacity as special administratrix filed a motion for the issuance of new copies of the owners duplicates of certain certificates of title in the name of Gliceria del Rosario, supposedly needed by her in the preparation of the inventory of the properties constituting the estate. The motion having been granted, new copies of the owners duplicates of certificates appearing the name of Gliceria del Rosario were issued. She presented to the Register of Deeds the deed of sale involving properties supposedly executed by Gliceria del Rosario in 1961 in favor of Alfonso Precilla (her husband) And, in consequence, said certificates of title were cancelled and new certificates were issued in the name of Alfonso TC: Petition granted, and order premised on the fact the petitioner was managing the properties belonging to the estate even during the lifetime of the deceased, and to appoint another person as administrator or co-administrator at that stage of the proceeding would only result in further confusion and difficulties.

ISSUE: Was the 1960 will Glicerias true will, considering her eye defect? NO HELD: 1. The testimony of the ophthalmologist who treated the deceased had first-hand knowledge of the actual condition of her eyesight. 2. Notwithstanding the operation and removal of the cataract in her left eye and her being fitted with aphakic lens (used by cataract patients), her vision remained mainly for viewing distant objects and not for reading print. 3. Thus, the conclusion is inescapable that with the condition of her eyesight in August, 1960, and there is no evidence that it had improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and could not have read the provisions of the will supposedly signed by her on 29 December 1960. 4. It is worth noting that the instrumental witnesses stated that she read the instrument silently which is a conclusion and not a fact. 5. It is difficult to understand that so important a document containing the final disposition of ones worldly possessions should be embodied in an informal and untidily written instrument. 6. Or that the glaring spelling errors should have escaped her notice if she had actually retained the ability to read the purported will and had done so 7. That Doa Gliceria should be able to greet her guests on her birthday, arrange flowers and attend to kitchen tasks shortly prior to the alleged execution of the testament Exhibit D, as appears from the photographs, Exhibits E to E-l, in no way proves that she was able to read a closely typed page, since the acts shown do not require vision at close range. 8. Neither is the signing of checks by her indicative of ability to see at normal reading distances.

9. 10.

11.

12. 13.

Writing or signing of ones name, when sufficiently practiced, becomes automatic, so that, one need only to have a rough indication of the place where the signature is to be affixed in order to be able to write it. Thus, for all intents and purposes of the rules on probate, the deceased Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind testator, and the due execution of her will would have required observance of the provisions of Article 808 of the Civil Code. ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing witnesses, and again, by the notary public before whom the will is acknowledged. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. There is nothing in the records to show that the above requisites have been complied with. Clearly, as already stated, the 1960 will sought to be probated suffers from infirmity that affects its due execution.

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. L-38338. January 28, 1985. (Kim) GUTIERREZ, JR., J.: Facts: 1. 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. 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. a. 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. a. Both recognized the handwriting of their mother and positively identified her signature. b. 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. 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.

2.

3. 4.

5.

6. 7.

8.

9.

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. a. 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 compiled 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.

Issue: WON 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 Held: YES Reason: 1. 2. 3. The SC 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. a. 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. 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. 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 execute. There is no such contingency in this case.

4. 5.

6.

34. ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW, respondents. G.R. No. L-40207 - September 28, 1984 - Melencio-Herrera Facts: 1. A holographic will, as first written, named Rosa K. Kalaw, a sister of the testratrix as the sole heir: The holographic Will reads in full as follows: My Last will and Testament In the name of God, Amen. I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa City, being of sound and disposing mind and memory, do hereby declare thus to be my last will and testament.

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

2. Hence, on November 10, 1971- Petitioner Rosa Kalaw opposed the probate because the holographic will contained alterations, correction, and insertions without the proper authentication by the full signature of the testatrix as required by Art. 814, CC. 3. Rosa's position was that the holographic Will, as first written, should be given effect and probated so that she could be the sole heir thereunder. 4. After trial, respondent Judge denied the probate of the will because the NBI reported that the handwriting, signature, the insertions and/or additions and the initial were made by one and the same person. 5. Gregorio moved for reconsideration arguing that since the alterations and/or insertions were the testatrix, the denial to probate of her holographic will would be contrary to her right of testamentary disposition. 6. However, the reconsideration was denied. 7. Rosa filed a Petition for Review on Certiorari. Issue: Whether or not the original unaltered text after subsequent alterations and insertions were voided by the trial court for lack of authentication by the full signature of the testatrix, should be probated or not, with her as sole heir? Held: Yes, the will should be probated. Ruling: 1. Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. 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." (the omission of the proviso does not override the will, according to the rule of law established in the judgment of April 4, 1895) 2. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full authentication by the full signature of the testator, the effect must be that the entire Will is voided or revoked for the simple reason that nothing remains in the Will after that which could remain valid. To state that the Will as first written should be given efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the manner required by law by affixing her full signature, 3. The ruling in Velasco, supra, must be held confined to such insertions, cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the testatrix herein, her real intention cannot be determined with certitude.

Disposition: Petition is dismissed. Decision of respondent Judge is affirmed.

Gago vs Mamuyac RICO 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 SARMIENTO, J.: FACTS: 1. 1963 - The heirs of Adriana Maloto, her niece and nephews, commenced an intestate proceeding for the settlement of Adrianas estate, believing that she did not leave behind a last will and testament. 2. 1964 - However, while the case was still in progress, the parties Aldina, Constancio, Panfilo, and Felino executed an agreement of extrajudicial settlement of Adriana's estate. division of the estate into four equal parts among the parties 3. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval which the court did. 4. 1967 the purported will (KatapusanngPagbubulat-an) was discovered by Atty. Palma, a former associate of Adrianas counsel, dated January 3, 1940 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 PurificacionMiraflor. 5. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo. 6. Thus, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed a motion for reconsideration and annulment of the proceedings therein and for the allowance of the will Trial court denied their motion 7. The petitioner came to the SC by way of a petition for certiorari and mandamus assailing the orders of the trial court. Petition dismissed 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. 8. The appellate court found as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe MalotoVda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently proven. Finding based 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. ISSUES: 1. Did Adriana have testamentary capacity, and was there due execution of the purported will? YES 2. Was Adrianas will effectively revoked? NO 3. Should the probate instituted by the petitioners be dismissed, since it is already barred by res adjudicate? NO 4. Could revocation be inferred from the fact that 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 in 1940?

SC: 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.

HELD: 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.)

1.

2.

3.

4.

5. 6.

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 presence and under his express direction. In the case at bar, the document or papers burned by Adriana's maid, Guadalupe, was: 1) not satisfactorily established to be a will at all, much less the will of Adriana Maloto; 2) the burning was not proven to have been done under the express direction of Adriana, and 3) 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. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and EladioItchon, 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. "(it) is an important matter of public interest that a purported win is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its very foundations ...." The doctrine of res adjudicata finds no application in the present controversy. For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned, since the decision of the trial court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. The trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested 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.

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. This Decision is IMMEDIATELY EXECUTORY.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitionerappellee, vs.LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants G.R. No. L-2538; September 21, 1951; J.Bautista Angelo (Bon) Doctrine: 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 Facts: 1. Mariano Molo y Legaspi died on January 24, 1941,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. 2. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, and another executed on June 20, 1939. . The later will executed has express provision revoking the will in 1918. 3. Only a carbon copy of the second will was found. The Juana Juan Vda. de Molo filed a petition for the probate of the 1939 will. It was admitted to probate but subsequently set aside on ground that the petitioner failed to prove its due execution. 4. 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. 5. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918 , in the same court. 6. Again, the same oppositors filed 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. Issue: Can the will executed in 1918 be probated in view of the disallowance of 1939 will despite the express revocation of the former? Held:

YES. The court applied the doctrine laid down in Samson v. Naval that a subsequent will, containing a clause revoking a previous will, having been disallowed for the reason that it was not executed in accordance with law cannot produce the effect of annulling the previous will, inasmuch as the said revocatory clause is void. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved 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. Further, 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 first 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 files of the testator. She did not find the original. Decision: Wherefore, the order appealed from is hereby affirmed, with costs against the appellants

Agtarap vs. Agtarap CELLES TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee; JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees, vs. TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of Francisco de Borja,appellant. . G.R. No. L-28040 August 18, 1972 Reyes, J.B.L. (Jeka) FACTS: 1. Francisco de Borja, upon the death of his wife Josefa Tangco on 6 October 1940, filed a petition for the probate of her will a. The will was probated on 2 April 1941 b. Francisco de Borja was appointed executor and administrator: c. Their son, Jose de Borja, was appointed co-administrator. 2. When Francisco died, Jose became the sole administrator of the testate estate of his mother, Josefa Tangco. a. While a widower Francisco de Borja allegedly took unto himself a second wife, Tasiana Ongsingco. b. Upon Francisco's death, Tasiana instituted testate proceedings in the Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special administratrix. 3. The testate estate of Josefa Tangco alone has been unsettled for more than a quarter of a century. In order to put an end to all these litigations, a compromise agreement was entered into. a. by and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de Borja.

4.

Jose de Borja submitted for Court approval the agreement of 12 October 1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on 8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832 a. The Rizal court approved the compromise agreement, but the Nueva Ecija court declared it void and unenforceable. b. Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of Nueva Ecija.

ISSUE: WON the compromise agreement is valid, even if the will of Francisco has not yet been probated Tasiana argues: that it was not valid because the heirs cannot enter into such kind of agreement without first probating the will of Francisco, and at the time the agreement was made, the will was still being probated with the CFI of Nueva Ecija. ISSUE: YES, the compromise agreement is valid. 1. The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. a. Guevara vs. Guevara. 74 Phil. 479, (Court's majority held the view that the presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy when the decedent left a will, is against the law and public policy.) b. There was here no attempt to settle or distribute the estate of Francisco de Borja among the heirs thereto before the probate of his will. c. The clear object of the contract was merely the conveyance by Tasiana Ongsingco of any and all her individual share and interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. d. There is no stipulation as to any other claimant, creditor or legatee. e. And as a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. 2. Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present Civil Code. a. Wherefore, barring unworthiness or valid disinheritance, her successional interest existed independent of Francisco de Borja's last will and testament and would exist even if such will were not probated at all. b. Thus, the prerequisite of a previous probate of the will, as established in the Guevara and analogous cases, can not apply to the case of Tasiana Ongsingco Vda. de de Borja. 3. Since the compromise contract Annex A was entered into by and between "Jose de Borja personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in their individual capacities, upon the perfection of the contract, even without previous authority of the Court to enter into the same . a. The only difference between an extrajudicial compromise and one that is submitted and approved by the Court, is that the latter can be enforced by execution proceedings.

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

Doctrine: 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. Facts: 1. 2. 3. Felicidad Esguerra Alto Yap died of heart failure Fausto E. Gan initiated them proceedings in the Manila CFI with a petition for the probate of a holographic will This was opposed by her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime. 4. After hearing both parties, Hon. Ramon R. San Jose, Judge, refused to probate the alleged will. The motion for reconsideration failed, hence this appeal. 5. 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. Summarized as follows: 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 sought advice from bar reviewing nephew. The latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed and dated by her. Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, FelinaEsguerra (daughter of Vicente), who was invited to read it. Later, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of FelinaEsguerra, who again read it Days later, Socorro Olartea cousin, and Rosario Gan Jimenez, a niece visterd. To these she showed the will, again in the presence of FelinaEsguerra, who read it for the third time. When Felicidad was confined Ildefonso tried to get from Felina the will which was contained in the purse. She read the will for the last time in the toilet before he gave it to him. Two persons swore that on the alleged day the will was made that Mrs.FelicidadEsguerra Yap made no will, and could have made no will on that day. 6. The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: If she wanted to keep the will a secret it was strange to have done it in front of a witness knowing it wasnt necessary. It is improbable to have allowed others to read the will if it is to be kept secret If the intention was to conceal why was the will carried in the purse where there is a big chance that the husband would acquire of it and destroy it. Issue: 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? Held: NO Ruling: 1. 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 the testator's handwriting has disappeared. The Civil Code requires the holographic will 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). a. And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). b. All these, imply presentation of the will itself.

2.

3. 4.

5.

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." d. 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. e. Obviously, this they can't do unless the will itself is presented to the Court and to them. f. 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. g. Such purpose is frustrated when the document is not presented for their examination. 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. 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. a. In the first, the only guarantee of authenticity is the handwriting itself; b. In the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). c. The loss of the holographic will entails the loss of the only medium of proof; d. If the ordinary will is lost, the subscribing witnesses are available to authenticate. e. In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not least, they cannot receive anything on account of the will. f. Whereas in the case of holographic wills, if oral testimony were admissible only one man could engineer the fraud this way: g. 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. h. 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. i. 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. 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; a. 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 cannot be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.

c.

41. 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 - Relova

Facts: 1. Petitioner Marcela Rodelas filed a petition with the CFI-Rizal for the probate of the holographic will of Ricardo and the issuance of the letters testamentary in her favor. This was opposed by respondent Amparo Aranza Bonilla, etc. because (1) petitioner Rodelas was estopped from claiming that the deceased left a will by failing to produce the will within 20 days from the death of the testator, (2) the copy of the holographic will did not contain the disposition of property after death and was not intended to take effect after death and therefore, it was not a will, (3) the holographic will must be procedure, not a copy of it, (4) the deceased did not leave any will. 2. Respondents moved for the dismissal of the petition to probate the will because (1) the holographic will was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by deceased Bonilla and (2) the lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills. 3. Decision of Trial Court: It dismissed the petition for the probate of the will of Ricardo Bonilla because once the original copy of the holographic will is lost, a copy cannot stand in lieu of the original. 4. The appellant's motion for consideration was denied. Hence, an appeal to the Court of Appeals was filed because the dismissal of the appellant's petition is contrary to law. 5. Hence, this petition. Issue: Whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy?

Held: Yes

Ruling: 1. 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. 2. However, 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. 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. 3. In the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect.

The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the probate court," Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the probate court. Disposition: The order of the lower court is SET ASIDE.

Azaola vs. Singson RICO

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL,vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents. G.R. No. 123486 August 12, 1999 Doctrine: We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. FACTS: 1. On April 6, 1990, Evangeline Calugay, Josephine Salcedo and EufemiaPatigas, devisees and legatees of the holographic will of the deceased MatildeSeoVda. deRamonal, filed a petition for probate of the holographic will of the deceased, who died on January 16, 1990. 2. In the petition, respondents claimed that the deceased MatildeSeoVda. deRamonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily. 3. On June 28, 1990, Eugenia RamonalCodoy and Manuel Ramonal filed an opposition to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible . Petitioners argued that the repeated dates incorporated or appearing on 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 influence on the part of the beneficiaries, or through fraud and trickery. 4. Respondents presented six (6) witnesses and various documentary evidence 5. 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 xxxxx. He produced and identified the records of the case. The documents presented bear the signature of the deceased, MatildeSeoVda. deRamonal, 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. GenerosaSenon, election registrar of Cagayan de Oro , was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available. MatildeRamonalBinanay, xxx During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased MatildeSeoVda. de Ramonal) in collecting rentals from her various tenantsxxxx

6.

7.

Fiscal Rodolfo Wagaxxxxhandled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, Mrs.TeresitaVedad, an employee of the Department of Environment and Natural Resources, xxxxprocessed the application of the deceased for pasture permit and was familiar with the signature of the deceased. Evangeline Calugay, xxx adopted by the latter. xxx she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of MatildeSeoVda. deRamonal. The holographic will which was written in Visayan, On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. . . . 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 the 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 . As can be see, 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.

ISSUE: 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. HELD: 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. 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. It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available . 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. 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 MatildeSeoVda. deRamonal.

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. 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. 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, ruling that the requirement is merely directory and not mandatory. 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. 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 five years before the death of the deceased. 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, 1978,33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

UY KIAO ENG, Petitioner, vs. NIXON LEE, Respondent. G.R. No. 176831; January 15, 2010; J.Nachura (Bon) Doctrine: A mandamus is nt the proper remedy for production of will. Facts:

1. Respondent Nixon Lee alleges that his mother is in custody of the holographic will and thus filed a petition for mandamus with damages against his mother before the RTC of Manila to compel petitioner to produce the holographic will of his father so that probate proceedings for the allowance thereof could be instituted. 2. In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the same be dismissed for failure to state a cause of action, for lack of cause of action, and for non-compliance with a condition precedent for the filing thereof. 3. Petitioner denied that she was in custody of the original holographic will and that she knew of its whereabouts. She, moreover, asserted that photocopies of the will were given to respondent and to his siblings. 4. After the presentation and formal offer of respondents evidence, petitioner demurred, contending that her son failed to prove that she had in her custody the original holographic will. The RTC, at first, denied the demurrer to evidence. However, it granted the same on petitioners motion for reconsideration. 5. On appeal CA initially denied the appeal but on motion for reconsideration, it ruled this time that respondent was able to show by testimonial evidence that his mother had in her possession the holographic will. 6. Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this motion. Left with no other recourse, petitioner brought the matter before this Court, contending in the main that the petition for mandamus is not the proper remedy and that the testimonial evidence used by the appellate court as basis for its ruling is inadmissible. Issue: IS the remedy of mandamus correctly availed by the respondent in this case for the production of the will? Held: NO. An important principle followed in the issuance of the writ is that there should be no plain, speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus being invoked. In other words, mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief. In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved herethe production of the original holographic willis in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. Rule 76, Section 1 relevantly provides:
o Section 1. Who may petition for the allowance of will.Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time, after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

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

SEC. 2. Custodian of will to deliver.The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will. SEC. 3. Executor to present will and accept or refuse trust. A person named as executor in a will shall within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it. SEC. 4. Custodian and executor subject to fine for neglect. A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos. SEC. 5. Person retaining will may be committed. A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed to prison and there kept until he delivers the will

Decision: WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the Court of Appeals in CAG.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is DISMISSED.
Palaganas vs Palaganas CELLES PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners, vs. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon G.R. No. L-29300 June 21, 1978 Aquino, J. (Jeka) FACTS: 1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. a. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis. 2. A petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). a. The notice of hearing was duly published. b. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; c. he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege ( sasacuyang ataman), Adolfo Fortajada, a minor. 3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. a. Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. 4. The testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance with Florentino's will

5.

6.

7.

The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. b. The testator's legal heirs did not appeal from the decree of probate trial from the order of partition trial distribution. Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. a. Alleged: that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. b. They prayed that they be declared the owners of the lands trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696). Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. a. Judge Anatolio C. Maalac dismiss the complaint on the ground of res judicata. b. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. c. Fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. d. They prayed for the appointment of a receiver. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit, caused the execution trial simulation of the document purporting to be the last will trial testament of Florentino Hitosis. a. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was dismissed by respondent Judge. b. The plaintiffs filed a motion for reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration of his order setting aside that dismissal order.

a.

ISSUE: WON the private respondents have a cause of action for the "annulment" of the will of Florentino Hitosis? The petitioners or the defendants below contend in this certiorari case that the lower court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967 complaint. HELD: No. The lower court committed a grave abuse of discretion in reconsideration its order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case. 1. A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted. a. What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the lower court itself. b. The proceeding is coupled with an action to recover the lands adjudicated to the defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of The complaint of the same parties that the same court dismissed in 1952. 2. It is evident from the allegations of the complaint trial from defendants' motion to dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus gentium as usucapio, longi temporis possesio and praescriptio. 3. Our procedural law does not sanction an action for the "annulment" of a will. a. In order that a will may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. b. The probate of the will is mandatory.

4.

5.

6.

7.

8.

9.

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court). The decree of probate is conclusive as to the due execution or formal validity of the will. a. That means that the testator was of sound and disposing mind at the time he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine. b. Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. c. After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be raised anymore. The SC also held that the decree of adjudication, having rendered in a proceeding in rem, is binding upon the whole world. Moreover, the dismissal of the first civil case, which is a judgment in personam, was an adjudication on the merits. Thus. It constitutes a bar by former judgment under the Rules of Court. The SC also held that the lower court erred in saying that the action for the recovery of the lands had not prescribed. a. The SC ruled that the Art. 1410 of NCC (the action or defense for the declaration of the inexistence of a contract does not prescribe) cannot apply to last wills and testaments. b. The Rules of Court does not sanction an action for annulment of a will. c. A final decree of probate is conclusive as to the due execution of the will. A decree of adjudication in a testate proceeding is binding on the whole world. After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of court has expired, a final judgment or order can be set aside only on the grounds of: (a) lack of jurisdiction or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four (4) years from the discovery of fraud. The Civil Law rule that an action for declaration of inexistence of a contract does not prescribe cannot be applied to last wills and testaments

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 REYES, J.B.L., J.: FACTS: 1. May 9, 1939 - the spouses, Bernabe de la Serna 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 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 testators is yet living, he or she will continue to enjoy the fruits of the two lands aforementioned" Bernabe dela Serna died, and the aforesaid will was submitted to probate by said Gervasia and Manuela before the Court of First Instance of Cebu. a. The CFI of Cebu allowed the probate of the will Upon the death of Gervasia Rebaca, another petition for the probate of the same will insofar as Gervasia was concerned was filed, 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 CFI: ordered the petition heard and declared the testament null and void, for being executed contrary to the prohibition of joint wills

2.

3.

4.

5.

6.

CA: reversed, on the ground that the decree of probate in 1939 (1 probate) was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. Further: 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 benefit or for the benefit of a third person. However, this form of will has long been sanctioned by use, and the same has continued to be used. Hence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

st

ISSUE: 1. WON the CA was incorrect when it held that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive on the due execution of the testament. ? NO 2. Is the joint will valid as to the share of Gervasia who died later than Bernabe? NO HELD: First 1. The final decree of probate, entered in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, 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). 2. 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 final decision, however erroneous. 3. Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939 decree admitting his will to probate. Second 1. the Court of Appeals should have taken into account also, to avoid future misunderstanding, that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la Cerna, and could not include the disposition of the share of the wife, GervasiaRebaca, 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. 4. Prior to the new Civil Code, a will could not be probated during the testator's lifetime. 5. 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. 6. 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 GervasiaRebaca in the properties in question. 7. Therefore, the undivided interest of GervasiaRebaca 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. Furthermore 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).

48. ETHEL GRIMM ROBERTS, petitioner, vs. JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila; MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA GRIMM, respondents.

G.R. No. L-55509 - April 27, 1984 - Aquino

Facts: 1. Edward Grimm, an American resident of Manila, died at 78 at Makati Medical Center. He was surived by his second wife, Maxine Tate Grimm, their two Children and his two children by a first marriage which ended in divorce. 2. He executed two wills in Sand Francisco, California. One will be disposed of his Philippine estate which he described as conjugal property of himself and his second wife. The second will disposed of his estate outside the Philippines. 3. .In both wills, the second wife and two children were favoured. The two children of the first marriage were given their legitimes in the will disposing of the estate situated in this country. In the will dealing with his property outside this country, the testator said: I purposely have made no provision in this will for my daughter, Juanita Grimm Morris, or my daughter, Elsa Grimm McFadden (Ethel Grimm Roberts), because I have provided for each of them in a separate will disposing of my Philippine property. 4. The two wills and a codicil were presented for probate by the children of the deceased's second marriage in the Third Judicial District of Tooele County, Utah. The children of the first marriage were notified of the probate proceeding. 5. However, Maxine, the second wife, admitted that she received notice of the intestate petition filed in Manila by Ethel, one of deceased's children by a first marriage. 6. The Third Judicial District Court admitted to probate the two wills and the codicil. 7. Two weeks later, Maxine and her two children ,as the first parties and the children of the first marriage, as the second parties, with knowledge of the intestate proceeding, entered into a compromise agreement in Utah regarding the estate. 8. In that agreement, it was stipulated that Maxine, Pete and Ethel would be designated as personal representatives (administrators) of Grimm's Philippine estate (par. 2). It was also stipulated that Maxine's one-half conjugal share in the estate should be reserved for her and that would not be less than $1,500,000 plus the homes in Utah and Santa Mesa, Manila (par. 4). The agreement indicated the computation of the "net distributable estate". It recognized that the estate was liable to pay the fees of the Angara law firm (par. 5). 9. It was stipulated in paragraph 6 that the decedent's four children "shall share equally in the Net Distributable Estate" and that Ethel and Juanita Morris should each receive at least 12-1/2% of the total of the net distributable estate and marital share. A supplemental memorandum also dated April 25, 1978 was executed by the parties 10. Forty-three days after Grimm's death, his daughter of the first marriage, Ethel, filed an intestate proceeding for the settlement of the estate. 11. The second wife, Maxine, filed an opposition and motion to dismiss the intestate proceeding on the ground of the pendency of the Utah of a proceeding for the probate of Grimm's will. 12. The intestate court disregarded the will already found in record and appointed Maxine, Ethel and Pete as joint administrators pursuant to the compromise agreement. 13. The three administrators submitted an inventory. With the approval of the court, they sold the business owned by the deceased and sold shares of stock. 14. Acting on the declaration of heirs and project of partition signed and filed by the lawyers (but not signed by the second wife and her two children). The Court adjudicated to Maxine 4/8 of the decedent's Philippine estate and 1/8 each to his four children. No mention at all was made of the will in that order.

15. For more than 5 months, there was no movement or activity in the intestate case. A motion for accounting was filed so that the estate properties can be partitioned among the heirs and the present intestate estate be closed. 16. However, the second wife, Maxine with her two children, filed in Branch 38 a petition praying for the probate of Grimm's two wills, that the partition approved by the intestate court be set aside and the letters of administration be revoked. 17. Grimms' second wife, Maxine and her two children alleged that Utah compromise agreement was illegal and the intestate proceeding is void because Grim died intestate and that the partition was contrary to the decedent's wills. 18. Ethel filed a motion to dismiss the petition. This was denied. Hence, a petition for certiorari and prohibition was filed. Issue: Whether the judge committed grave abuse of discretion amounting to lack of jurisdiction in denying Ethels motion to dismiss?

Held: No.

Ruling: 1. We hold that respondent judge did not commit any grave abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's motion to dismiss. 2. A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court). 3. The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. 4. Ethel may file within twenty days from notice of the finality of this judgment an opposition and answer to the petition unless she considers her motion to dismiss and other pleadings sufficient for the purpose. Juanita G. Morris, who appeared in the intestate case, should be served with copies of orders, notices and other papers in the testate case. Disposition: Petition is dismissed. Nepomuceno vs. CA RICO
TESTATE ESTATE OF CATALINA DE LA CRUZ, deceased, ANDRES PASCUAL, petitionerappellee, vs. PEDRO DE LA CRUZ, ET AL., oppositors-appellants. G.R. No. L-24819 May 30, 1969

1. 2.

3.

4.

5.

On 2 January 1960, Catalina de la Cruz, single and without any surviving descendant or ascendant, died at the age of 89 in On 14 January 1960, a petition for the probate of her alleged will was filed in the Court of First Instance of Rizal by Andres Pascual, who was named in the said will as executor and sole heir of the decedent. Opposing the petition, Pedro de la Cruz and 26 other nephews and nieces of the late Catalina de la Cruz contested the validity of the will on the grounds that the formalities required by law were not complied with; that the testatrix was mentally incapable of disposing of her properties by will at the time of its execution; that the will was procured by undue and improper pressure and influence on the part of the petitioner; and that the signature of the testatrix was obtained through fraud. After hearing, during which the parties presented their respective evidences, the probate court rendered judgment upholding the due execution of the will, and, as therein provided, appointed petitioner Andres Pascual executor and administrator of the estate of the late Catalina de la Cruz without bond. In this instance, oppositors-appellees claim that the lower court erred in giving credence to the testimonies of the subscribing witnesses and the notary that the will was duly executed, notwithstanding the existence of inconsistencies and contradictions in the testimonies, and in disregarding their evidence that the will was not signed by all the witnesses in the presence of one another, in violation of the requirement of the law.

ISSUE: WON the contradictions and inconsistencies in the testimonies of the witnesses and the notary are significant to disallow the will? NO WON the fact that the instrumental witnesses are more familiar (or friends with) to Andres Pascual makes the witnesses incompetent? NO WON the oppositors was able to prove existence of undue influence? NO HELD: 1. In connection with the issue under consideration, we agree with the trial judge that the contradictions and inconsistencies appearing in the testimonies of the witnesses and the notary, pointed out by the oppositors-appellants (such as the weather condition at the time the will was executed; the sequence of the signing by the witnesses; and the length of time it took to complete the act), relate to unimportant details of the impressions of the witnesses about certain details which could have been affected by the lapse of time and the treachery of human memory, and which inconsistencies, by themselves, would not alter the probative value of their testimonies on the due execution of the will
2. In Estate of Javellana vs. Javellana, L-13781, 30 January 1960, 106 Phil. 1076, this Court ruled: For the purpose of determining the due execution of a will, it is not necessary that the instrumental witnesses should give an accurate and detailed account of the proceeding, such as recalling the order of the signing of the document by the said witnesses. It is sufficient that

3.

4.

5.

6.

7.

they have seen or at least were so situated at the moment that they could have seen each other sign, had they wanted to do so. In fact, in the instant case, at least two witnesses, ... both testified that the testator and the 3 witnesses signed in the presence of each and every one of them Neither do we believe that the fact that the witnesses were better known to proponent Andres Pascual than to the testatrix suffices to render their testimony suspect. Under the circumstances, considering the admitted fact that when the will was executed (1954) the testatrix was already 83 years old, suffering from rheumatism to the extent that she had to wear thick socks and soft shoes, it did not unlikely that she should have entrusted the task of requesting them to act as witnesses to Andres Pascual himself, albeit the said witnesses, testifying eight years later, should have stated that they were asked by Catalina to witness her testament. The authorities are to the effect that friendly relations of the witnesses with the testator or the beneficiaries do not affect the credibility of the former, so that the proven friendship between the proponent and the instrumental witnesses would have no bearing on the latter's qualification to testify on the circumstances surrounding the signing of the will. it is worthwhile to recall the basic principles on undue pressure and influence as laid down by the jurisprudence of this Court: that to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own ---- that the contention that a will was obtained by undue influence or improper pressure cannot be sustained on mere conjecture or suspicion, as it is enough that there was opportunity to exercise undue influence, or a possibility that it may have been exercised ---- that the exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised; ---- that the burden is on the person challenging the will to show that such influence was exerted at the time of its execution ---- that mere general or reasonable influence is not sufficient to invalidate a will (Coso vs. Fernandez Deza, ante); nor is moderate and reasonable solicitation and entreaty addressed to the testator (Barreto vs. Reyes, L-5831-31, 31 January 1956), or omission of relatives, not forced heirs, evidence of undue influence Tested against these rulings, the circumstances marshalled by the contestants certainly fail to establish actual undue influence or improper pressure exercised on the testarix by the proponent. Their main reliance is on the assertion of the latter, in the course of his testimony, that the deceased "did not like to sign anything unless I knew it", which does not amount to proof that she would sign anything that proponent desired. On the contrary, the evidence of contestants-appellants, that proponent purchased a building in Manila for the testarix, placed the title in his name, but caused the name "Catalina de la Cruz" to be painted thereon in bold letters to mislead the deceased, even if true, demonstrates that proponent's influence was not such as to overpower to destroy the free will of the testarix. Because if the mind of the latter were really subjugated by him to the extent pictured by the contestants, then proponent had no need to recourse to the deception averred. Nor is the fact that it was proponent, and not the testarix, who asked Dr. Sanchez to be one of the instrumental witnesses evidence of such undue influence, for the reason that the rheumetism of the testarix made it difficult for her to look for all the witnesses.
lawphi1.et