G.R. No.

L-38338 January 28, 1985

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS
AND BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS
DE JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Ofce for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de Jesus.

GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose
C. Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI
disallowing the probate of the holographic Will of the deceased Bibiana
Roxas de Jesus.
The antecedent facts which led to the ling of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was led 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 Win on July 21, 1973.
Petitioner Simeon R. Roxas testied 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-win addressed to
her children and entirely written and signed in the handwriting of the
deceased Bibiana R. de Jesus was found. The will is dated "FEB./61 " and
states: "This is my win which I want to be respected although 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 testied
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their mother
and positively Identied her signature. They further testied 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 led an "opposition to
probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was executed
through force, intimidation and/or under duress, undue inuence and
improper pressure, and (c) the alleged testatrix acted by mistake and/or did
not intend, nor could have intended the said Will to be her last Will and
testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have been
duly executed in accordance with law.
Respondent Luz Roxas de Jesus led a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day, month
and year of its execution and that this should be strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier
order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana
Roxas de Jesus, is hereby disallowed for not having been executed as
required by the law. The order of August 24, 1973 is hereby set aside.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form, and may be made in or out of the Philippines, and need not be
witnessed.
The petitioners contend that while Article 685 of the Spanish Civil Code and
Article 688 of the Old Civil Code require the testator to state in his
holographic Win the "year, month, and day of its execution," the present Civil
Code omitted the phrase Ao mes y dia and simply requires that the
holographic Will should be dated. The petitioners submit that the liberal
construction of the holographic Will should prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil
Code in that the date must contain the year, month, and day of its execution.
The respondent contends that Article 810 of the Civil Code was patterned
after Section 1277 of the California Code and Section 1588 of the Louisiana
Code whose Supreme Courts had consistently ruled that the required date
includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the
petitioner cannot plead liberal construction of Article 810 of the Civil Code
because statutes prescribing the formalities to be observed in the execution
of holographic Wills are strictly construed.
We agree with the petitioner.
This will not be the rst time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of
Wills. We should not overlook the liberal trend of the Civil Code in the
manner of execution of Wills, the purpose of which, in case of doubt is to
prevent intestacy
The underlying and fundamental objectives permeating the provisions of the
law on wigs in this Project consists in the liberalization of the manner of their
execution with the end in view of giving the testator more freedom in
expressing his last wishes, but with sufcien safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper
pressure and inuence upon the testator.
This objective is in accord with the modem tendency with respect to the
formalities in the execution of wills. (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
Bustos (27 SCRA 327) he emphasized that:
xxx xxx xxx
... The law has a tender regard for the will of the testator expressed in his last
will and testament on the ground that any disposition made by the testator is
better than that which the law can make. For this reason, intestate
succession is nothing more than a disposition based upon the presumed will
of the decedent.
Thus, the prevailing policy is to require satisfaction of the legal requirements
in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege Icasiano v. Icasiano, 11
SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise
thereof is obviated, said Win should be admitted to probate (Rey v.
Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding
circumstances point to a regular execution of the wilt and the instrument
appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of
language, or other non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufcient if the objective or purpose
sought to be accomplished by such requisite is actually attained by the form
followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court in Abangan v. Abanga 40 Phil. 476, where we ruled
that:
The object of the solemnities surrounding the execution of wills is to close the
door against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. ...
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or of
a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of Wins
and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed by
the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother and
that she had the testamentary capacity at the time of the execution of said
Will. The objection interposed by the oppositor-respondent Luz Henson is
that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufcient compliance with Article 810
of the Civil Code. This objection is too technical to be entertained.
As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there
is no appearance of fraud, bad faith, undue inuence and pressure and the
authenticity of the Will is established and the only issue is whether or not the
date "FEB./61" appearing on the holographic Will is a valid compliance with
Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is
REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
G.R. Nos. 83843-44 April 5, 1990
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
MELECIO LABRADOR. SAGRADO LABRADOR (Deceased), substituted
by ROSITA LABRADOR, ENRICA LABRADOR, and CRISTOBAL
LABRADOR, petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin C. Santos Law Ofces for petitioners.
Rodrigo V. Fontelera for private respondents.

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 810 2 of the New
Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under
Original Certicate of Title No. P-1652, and the following heirs, namely:
Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josena, Juliana, Hilaria and
Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, led in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador led an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is, before
Melecio's death, for the consideration of Six Thousand (P6,000) Pesos,
testator Melecio executed a Deed of Absolute Sale, selling, transferring and
conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and that
as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No.
T-21178. Earlier however, in 1973, Jesus Labrador sold said parcel of land to
Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon led, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of Absolute
Sale over a parcel of land which Sagrado allegedly had already acquired by
devise from their father Melecio Labrador under a holographic will executed
on March 17, 1968, the complaint for annulment docketed as Civil Case No.
934-I, being premised on the fact that the aforesaid Deed of Absolute Sale is
ctitious.
After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum of
P5,000.00 representing the redemption price for the property paid by the
plaintiff-petitioner Sagrado with legal interest thereon from December 20,
1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on
March 10, 1988 modied said joint decision of the court a quo by denying the
allowance of the probate of the will for being undated and reversing the order
of reimbursement. Petitioners' Motion for Reconsideration of the aforesaid
decision was denied by the Court of Appeals, in the resolution of June 13,
1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING
THE PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR
MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF
THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into
English, is quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I First Page
This is also where it appears in writing of the place which is assigned and
shared or the partition in favor of SAGRADO LABRADOR which is the
shpond located and known place as Tagale.
And this place that is given as the share to him, there is a measurement of
more or less one hectare, and the boundary at the South is the property and
assignment share of ENRICA LABRADOR, also their sister, and the
boundary in the West is the sea, known as the SEA as it is, and the boundary
on the NORTH is assignment belonging to CRISTOBAL LABRADOR, who
likewise is also their brother. That because it is now the time for me being
now ninety three (93) years, then I feel it is the right time for me to partition
the shponds which were and had been bought or acquired by us, meaning
with their two mothers, hence there shall be no differences among
themselves, those among brothers and sisters, for it is I myself their father
who am making the apportionment and delivering to each and everyone of
them the said portion and assignment so that there shall not be any cause of
troubles or differences among the brothers and sisters.
II Second Page
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said shpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father.
Now, this is the nal disposition that I am making in writing and it is this that
should be followed and complied with in order that any differences or
troubles may be forestalled and nothing will happen along these troubles
among my children, and that they will be in good relations among
themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all
coconut trees and all others like the other kind of bamboo by name of Bayog,
it is their right to get if they so need, in order that there shall be nothing that
anyone of them shall complain against the other, and against anyone of the
brothers and sisters.
III THIRD PAGE
And that referring to the other places of property, where the said property is
located, the same being the fruits of our earnings of the two mothers of my
children, there shall be equal portion of each share among themselves, and
or to be benetted with all those property, which property we have been able
to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which
I am here hereof manifesting of the truth and of the fruits of our labor which
their two mothers, I am signing my signature below hereof, and that this is
what should be complied with, by all the brothers and sisters, the children of
their two mothers JULIANA QUINTERO PILARISA and CASIANA
AQUINO VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810. It is worthy of note to quote the rst paragraph of
the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning
and assigning the respective assignment of the said shpond, and this being
in the month of March, 17th day, in the year 1968, and this decision and or
instruction of mine is the matter to be followed. And the one who made this
writing is no other than MELECIO LABRADOR, their father. (emphasis
supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself
and executed in the hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneciaries entered into an agreement among themselves
about "the partitioning and assigning the respective assignments of the said
shpond," and was not the date of execution of the holographic will; hence,
the will is more of an "agreement" between the testator and the beneciaries
thereof to the prejudice of other compulsory heirs like the respondents. This
was thus a failure to comply with Article 783 which denes a will as "an act
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate, to take effect after his
death."
Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words of
the paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that
Melecio Labrador was fully aware of the nature of the estate property to be
disposed of and of the character of the testamentary act as a means to
control the disposition of his estate.
Anent the second issue of nding the reimbursement of the P5,000
representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(shpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to sell,
rendering such sale null and void. Petitioners, thus "redeemed" the property
from Navat for P5,000, to immediately regain possession of the property for
its disposition in accordance with the will. Petitioners therefore deserve to be
reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated
March 10, 1988 is hereby REVERSED. The holographic will of Melecio
Labrador is APPROVED and ALLOWED probate. The private respondents
are directed to REIMBURSE the petitioners the sum of Five Thousand Pesos
(P5,000.00).
SO ORDERED.
G.R. No. L-14003 August 5, 1960
FEDERICO AZAOLA, petitioner-appellant,
vs.
CESARIO SINGSON, oppositor-appellee.
F. Lavides and L.B. Alcuaz for appellant.
Vicente J. Cuna and P.S. Singson for appellee.
REYES, J.B.L., J.:
This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special Proceedings
No. Q-2640, involves the determination of the quantity of evidence required
for the probate of a holographic will.
The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briey speaking, the following facts were established by the petitioner; that
on September 9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot,
Quezon City, known to be the last residence of said testatrix; that Francisco
Azaola, petitioner herein for probate of the holographic will, submitted the
said holographic will (Exh. C) whereby Maria Milagros Azaola was made the
sole heir as against the nephew of deceased Cesario Singson; that witness
Francisco Azaola testied that he saw the holographic will (Exh. C) one
month, more or less, before the death of the testatrix, as the same was
handed to him and his wife; that the witness testied also that he recognized
all the signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement, witness
presented the mortgage (Exh. E), the special power of the attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale
(Exhs. G and G-1) including an afdavit (Exh. G-2), and that there were
further exhibited in court two residence certicates (Exhs. H and H-1) to
show the signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testied that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well as the
signatures appearing in the aforesaid documentary evidence is in the
handwriting of the testatrix as well as the signatures appearing therein are
the signatures of the testatrix; that said witness, in answer to a question of
his counsel admitted that the holographic will was handed to him by the
testatrix. "apparently it must have been written by her" (t.s.n., p. 11).
However, on page 16 on the same transcript of the stenographic notes, when
the same witness was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased Fortunata Vda. de Yance, he
answered positively in the afrmative and when he was asked again whether
the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would
denitely say it is hers"; that it was also established in the proceedings that
the assessed value of the property of the deceased in Luskot, Quezon City,
is in the amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution of the
will was procured by undue and improper pressure and inuence on the part
of the petitioner and his wife, and (2) that the testatrix did not seriously intend
the instrument to be her last will, and that the same was actually written
either on the 5th or 6th day of August 1957 and not on November 20, 1956
as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate being
contested; and because the lone witness presented by the proponent "did
not prove sufciently that the body of the will was written in the handwriting of
the testatrix."
The proponent appealed, urging: rst, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production of
three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witnesses referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if
the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present Civil Code can not be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of
the testator, under penalty of having the probate denied. Since no witness
may have been present at the execution of a holographic will, none being
required by law (Art. 810, new Civil Code), it becomes obvious that the
existence of witness possessing the requisite qualications is a matter
beyond the control of the proponent. For it is not merely a question of nding
and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not so express) "that the will and the signature
are in the handwriting of the testator". There may be no available witness of
the testator's hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of Article
811 may thus become an impossibility. That is evidently the reason why the
second paragraph of Article 811 prescribes that
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
As can be seen, the law foresees the possibility that no qualied 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 deciency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delnado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not
be ignored that the requirement can be considered mandatory only in the
case of ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(Art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity.
Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the ill is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the Court may
still, and in fact it should, resort to handwriting experts. The duty of the Court,
in ne, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried
into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed., p.
421), sagely remarks:
La manera como esta concebida la redaccion del ultimo apartado de dicho
precepto induce la conclusion de que siempre o por lo menos, en la mayor
parte de los casos, el Juez debe acudir al criterio pericial para que le ilustre
acerca de la autenticidad del testamento olografo, aunque ya esten insertas
en los autos del expediente las declaraciones testicales. La prudencia con
que el Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo hace
necesario para mayor garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una conrmacion facultativa
del dicho profano de los testigos y un modo de desvanecer las ultimas dudas
que pudieran ocurrir al Juez acerca de la autenticidad que trata de averigaur
y declarar. Para eso se ha escrito la frase del citado ultimo apartado,
(siempre que el Juez lo estime conveniente), haya habido o no testigos y
dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con independencia de los
sucesos y de su signicacion, para responder debidamente de las
resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed, no
unfavourable inference can be drawn from a party's failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.
Our conclusion is that the rule of the rst paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the rst occasion in which this Court has
been called upon to construe the import of said article, the interest of justice
would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses, should
the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record shall
not be retaken. No costs.
G.R. No. 123486 August 12, 1999
EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,
vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and witness
Matilde Ramonal Binanay, the authenticity of testators holographic will has
been established and the handwriting and signature therein (exhibit S) are
hers, enough to probate said will. Reversal of the judgment appealed from
and the probate of the holographic will in question be called for. The rule is
that after plaintiff has completed presentation of his evidence and the
defendant les a motion for judgment on demurrer to evidence on the ground
that upon the facts and the law plaintiff has shown no right to relief, if the
motion is granted and the order to dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf (Sec, 1 Rule 35
Revised Rules of Court). Judgment may, therefore, be rendered for appellant
in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered
allowing the probate of the holographic will of the testator Matilde Seo Vda.
de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, led with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on
August 30, 1978, that there was no fraud, undue inuence, and duress
employed in the person of the testator, and will was written voluntarily.
The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death.4
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal led an
opposition5 to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a
"third hand" of an interested party other than the "true hand" of Matilde Seo
Vda. de Ramonal executed the holographic will.
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
inuence on the part of the beneciaries, or through fraud and trickery.
1wphi1.nt
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, led a demurrer6
to evidence, claiming that respondents failed to establish sufcient factual
and legal basis for the probate of the holographic will of the deceased
Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit "S") on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is denied for insufciency of
evidence and lack of merits.7
On December 12, 1990, respondents led a notice of appeal,8 and in support
of their appeal, the respondents once again reiterated the testimony of the
following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3)
Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and
(6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses, we recite
an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of the
deceased was led. He produced and identied the records of the case. The
documents presented bear the signature of the deceased, Matilde Seo Vda.
de Ramonal, for the purpose of laying the basis for comparison of the
handwriting of the testatrix, with the writing treated or admitted as genuine by
the party against whom the evidence is offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to
produced and identify the voter's afdavit of the decedent. However, the
voters' afdavit was not produced for the same was already destroyed and
no longer available.
Matilde Ramonal Binanay, testied that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the
latter lived with her in her parent's house for eleven (11) years from 1958 to
1969. During those eleven (11) years of close association the deceased, she
acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testied that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978,
which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the signatures
in said will, were that of the deceased.
Fiscal Rodolfo Waga testied that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the proceedings
of her late husband, as a result of which he is familiar with the handwriting of
the latter. He testied that the signature appearing in the holographic will was
similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can
not be sure.
The fth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testied
that she processed the application of the deceased for pasture permit and
was familiar with the signature of the deceased, since the signed documents
in her presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testied that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of the
deceased. She testied that the signature appearing in the holographic will is
the true and genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction
August 30, 1978
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josena Salcedo must be given 1,500 square meters at Pinikan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelry's shall be divided among:
1. Eufemia Patigas
2. Josena Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline
R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am
no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the
appeal was meritorious. Citing the decision in the case of Azaola vs.
Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized
authority in civil law, the Court of Appeals held:
. . . even if the genuineness of the holographic will were contested, we are 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 qualications is a matter
beyond the control of the proponent. For it is not merely a question of nding
and producing any three witnesses; they must be witnesses "who know the
handwriting and signature of the testator" and who can declare (truthfully, of
course, even if the law does not express) "that the will and the signature are
in the handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the witness
maybe unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility. That is
evidently the reason why the second paragraph of article 811 prescribes that

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

paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
As can be see, the law foresees, the possibility that no qualied witness ma
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 deciency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delanado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not
be ignored that the requirement can be considered mandatory only in case of
ordinary testaments, precisely because the presence of at least three
witnesses at the execution of ordinary wills is made by law essential to their
validity (Art. 805). Where the will is holographic, no witness need be present
(art. 10), and the rule requiring production of three witnesses must be
deemed merely permissive if absurd results are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the
words "if the court deem it necessary", which reveal that what the law deems
essential is that the court should be convinced of the will's authenticity.
Where the prescribed number of witnesses is produced and the court is
convinced by their testimony that the will is genuine, it may consider it
unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may
still, and in fact it should resort to handwriting experts. The duty of the court,
in ne, is to exhaust all available lines of inquiry, for the state is as much
interested as the proponent that the true intention of the testator be carried
into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic
will were contested, Article 811 of the civil code cannot be interpreted as to
require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of the having the probate denied.
No witness need be present in the execution of the holographic will. And the
rule requiring the production of three witnesses is merely permissive. What
the law deems essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry, for the state is as
much interested in the proponent that the true intention of the testator be
carried into effect. And because the law leaves it to the trial court to decide if
experts are still needed, no unfavorable inference can be drawn from a
party's failure to offer expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses.10
According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal
Binanay and other witnesses denitely and in no uncertain terms testied
that the handwriting and signature in the holographic will were those of the
testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature therein,
and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102,
relied upon by the respondent Court of Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that private
respondents had been able to present credible evidence to that the date,
text, and signature on the holographic will written entirely in the hand of the
testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the signatures
in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of the
Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least three
witnesses explicitly declare that the signature in the will is the genuine
signature of the testator.1wphi1.nt
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.11
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 benet 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
testied explicitly that they were familiar with the handwriting of testator. In
the case of Augusto Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identied the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was
presented to identify the signature of the deceased in the voter's afdavit,
which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testied that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with
your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what
was your occupation or how did Matilde Vda de Ramonal keep herself busy
that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.12
x x x x x x x x x
Q. Who sometime accompany her?
A. I sometimes accompany her.
Q. In collecting rentals does she issue receipts?
A. Yes, sir.13
x x x x x x x x x
Q. Showing to you the receipt dated 23 October 1979, is this the one you
are referring to as one of the receipts which she issued to them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that is the signature of Matilde Vda. De Ramonal?
A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de
Ramonal kept records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of Matilde
Vda. De Ramonal.
Q. How is this record of accounts made? How is this reected?
A. In handwritten.14
x x x x x x x x x
Q. In addition to collection of rentals, posting records of accounts of tenants
and deed of sale which you said what else did you do to acquire familiarity of
the signature of Matilde Vda De Ramonal?
A. Posting records.
Q. Aside from that?
A. Carrying letters.
Q. Letters of whom?
A. Matilde.
Q. To whom?
A. To her creditors.15
x x x x x x x x x
Q. You testied that at time of her death she left a will. I am showing to you
a document with its title "tugon" is this the document you are referring to?
A. Yes, sir.
Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose
handwriting is this?
A. My Aunt.
Q. Why do you say this is the handwriting of your aunt?
A. Because I am familiar with her signature.16
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.
Further, during the cross-examination, the counsel for petitioners elicited the
fact that the will was not found in the personal belongings of the deceased
but was in the possession of Ms. Binanay. She testied that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the
late Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mother's possession.
Q. So, it was not in your possession?
A. Sorry, yes.
Q. And when did you come into possession since as you said this was
originally in the possession of your mother?
A. 1985.17
x x x x x x x x x
Q. Now, Mrs. Binanay was there any particular reason why your mother left
that will to you and therefore you have that in your possession?
A. It was not given to me by my mother, I took that in the aparador when
she died.
Q. After taking that document you kept it with you?
A. I presented it to the scal.
Q. For what purpose?
A. Just to seek advice.
Q. Advice of what?
A. About the will.18
In her testimony it was also evident that Ms. Binanay kept the fact about the
will from petitioners, the legally adopted children of the deceased. Such
actions put in issue her motive of keeping the will a secret to petitioners and
revealing it only after the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person
is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk agilely
and she could go to her building to collect rentals, is that correct?
A. Yes, sir.19
x x x x x x x x x
Q. Now, let us go to the third signature of Matilde Ramonal. Do you know
that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in
Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.20
x x x x x x x x x
Q. Now, that was 1979, remember one year after the alleged holographic
will. Now, you identied a document marked as Exhibit R. This is dated
January 8, 1978 which is only about eight months from August 30, 1978. Do
you notice that the signature Matilde Vda de Ramonal is beautifully written
and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was exhausted?
A. In writing.
Q. How did you know that she was exhausted when you were not present
and you just tried to explain yourself out because of the apparent
inconsistencies?
A. That was I think. (sic).
Q. Now, you already observed this signature dated 1978, the same year as
the alleged holographic will. In exhibit I, you will notice that there is no
retracing; there is no hesitancy and the signature was written on a uid
movement. . . . And in fact, the name Eufemia R. Patigas here refers to one
of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the questioned
signature appearing in the alleged holographic will marked as Exhibit X but in
the handwriting themselves, here you will notice the hesitancy and tremors,
do you notice that?
A. Yes, sir.21
Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testied that:
Q. You testied that you stayed with the house of the spouses Matilde and
Justo Ramonal for the period of 22 years. Could you tell the court the
services if any which you rendered to Matilde Ramonal?
A. During my stay I used to go with her to the church, to market and then to
her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying taxes
and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of the
handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.22
x x x x x x x x x
Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated
Agosto 30, 1978 there is a signature here below item No. 1, will you tell this
court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.23
So, the only reason that Evangeline can give as to why she was familiar with
the handwriting of the deceased was because she lived with her since birth.
She never declared that she saw the deceased write a note or sign a
document.
The former lawyer of the deceased, Fiscal Waga, testied that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.24
x x x x x x x x x
Q. Can you tell this court whether the spouses Justo Ramonal and Matilde
Ramonal have legitimate children?
A. As far as I know they have no legitimate children.25
x x x x x x x x x
Q. You said after becoming a lawyer you practice your profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of counsel
as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which was under
the court before.26
x x x x x x x x x
Q. Appearing in special proceeding no. 427 is the amended inventory which
is marked as exhibit N of the estate of Justo Ramonal and there appears a
signature over the type written word Matilde vda de Ramonal, whose
signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27
x x x x x x x x x
Q. Aside from attending as counsel in that Special Proceeding Case No.
427 what were the other assistance wherein you were rendering professional
service to the deceased Matilde Vda de Ramonal?
A. I can not remember if I have assisted her in other matters but if there are
documents to show that I have assisted then I can recall.28
x x x x x x x x x
Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over
this document, Fiscal Waga and tell the court whether you are familiar with
the handwriting contained in that document marked as exhibit "S"?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs. Matilde
vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can
you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde vda de
Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.
Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they are
similar.29
x x x x x x x x x
Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde
Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde
vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not denite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her signature
because it is similar to the signature of the project of partition which you have
made?
A. That is true.30
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,31 ruling
that the requirement is merely directory and not mandatory.
In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But on the other
hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being
adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in the
handwriting of the deceased.
The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased.
In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or ve years before the death of the deceased.
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 ows 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.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate of
the holographic will of the deceased Matilde Seo vda. de Ramonal.
1wphi1.nt
No costs.
SO ORDERED.
G.R. No. L-12190 August 30, 1958
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.
FAUSTO E. GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for
appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan,
Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila
court of rst instance with a petition for the probate of a holographic will
allegedly executed by the deceased, substantially in these words:
Nobyembre 5, 1951.
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay
nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay
aking ipinamamana sa aking mga kamag-anakang sumusunod:
Vicente Esguerra, Sr. .............................................
5 Bahagi
Fausto E. Gan .........................................................
2 Bahagi
Rosario E. Gan .........................................................
2 Bahagi
Filomena Alto ..........................................................
1 Bahagi
Beatriz Alto ..............................................................
1 Bahagi
At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking
ipinamamana sa aking asawang si Idelfonso D. Yap sa kondisyong siya'y
magpapagawa ng isang Health Center na nagkakahalaga ng di kukulangin
sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang
aking pangalang Felicidad Esguerra-Alto. At kung ito ay may kakulangan
man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.
(Lagda) Felicidad E. Alto-Yap.
Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her
lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R.
San Jose, Judge,1 refused to probate the alleged will. A seventy-page motion
for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo
Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be
summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to
her rst cousin, Vicente Esguerra, her desire to make a will. She conded
however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then
preparing for the bar examinations. The latter replied it could be done without
any witness, provided the document was entirely in her handwriting, signed
and dated by her. Vicente Esguerra lost no time in transmitting the
information, and on the strength of it, in the morning of November 5, 1951, in
her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated
a holographic will substantially of the tenor above transcribed, in the
presence of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was visited by a
distant relative, Primitivo Reyes, and she allowed him to read the will in the
presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario
Gan Jimenez, a niece. To these she showed the will, again in the presence of
Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was conned at the U.S.T. Hospital
for her last illness, she entrusted the said will, which was contained in a
purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband,
asked Felina for the purse: and being afraid of him by reason of his well-
known violent temper, she delivered it to him. Thereafter, in the same day,
Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not
before she had taken the purse to the toilet, opened it and read the will for
the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been
suffering from heart disease for several years before her death; that she had
been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United
States wherein for several weeks she was treated for the disease; that
thereafter she felt well and after visiting interesting places, the couple
returned to this country in August 1950. However, her ailment recurred, she
suffered several attacks, the most serious of which happened in the early
morning of the rst Monday of November 1951 (Nov. 5). The whole
household was surprised and alarmed, even the teachers of the Harvardian
Colleges occupying the lower oors and of by the Yap spouses. Physician's
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her husband
and her personal attendant, Mrs. Bantique, constantly at her side. These two
persons swore that Mrs. Felicidad Esguerra Yap made no will, and could
have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed it in the presence of Felina Esguerra,
knowing as she did that witnesses were unnecessary; (b) in the absence of a
showing that Felina was a condant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several
times; (c) it is improbable that the decedent would have permitted Primitivo
Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is
also improbable that her purpose being to conceal the will from her husband
she would carry it around, even to the hospital, in her purse which could for
one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the
will was there, it is hard to believe that he returned it without destroying the
will, the theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the
oppositor's evidence that Felicidad did not and could not have executed such
holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony
of the oppositor and of his witnesses in a vigorous effort to discredit them. It
appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its
mind. The oppositor's brief, on the other hand, aptly answers the criticisms.
We deem it unnecessary to go over the same matters, because in our
opinion the case should be decided not on the weakness of the opposition
but on the strength of the evidence of the petitioner, who has the burden of
proof.
The Spanish Civil Code permitted the execution of holographic wills along
with other forms. The Code of Civil Procedure (Act 190) approved August 7,
1901, adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts.
810-814. "A person may execute a holographic will which must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to
no other form and may be made in or out of the Philippines, and need not be
witnessed."
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fty years (from 1901 to 1950) required wills to
be subscribed by the testator and three credible witnesses in each and every
page; such witnesses to attest to the number of sheets used and to the fact
that the testator signed in their presence and that they signed in the
presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against
bad faith and fraud, to prevent substitution of wills, to guarantee their truth
and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
have no right to succeed the testator would succeed him and be beneted
with the probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855).
However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No.
3 p. 194.)
Authenticity and due execution is the dominant requirements to be fullled
when such will is submitted to the courts for allowance. For that purpose the
testimony of one of the subscribing witnesses would be sufcient if there is
no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available.
(Cabang vs. Delnado, 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742).
From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and
veracity are demanded, since as stated, they need no witnesses; provided
however, that they are "entirely written, dated, and signed by the hand of the
testator himself." The law, it is reasonable to suppose, regards the document
itself as material proof of authenticity, and as its own safeguard, since it could
at any time, be demonstrated to be or not to be in the hands of the
testator himself. "In the probate of a holographic will" says the New Civil
Code, "it shall be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at
least three such witnesses shall be required. In the absence of any such
witnesses, (familiar with decedent's handwriting) and if the court deem it
necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or
they may deliberately lie in afrming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's
handwriting, or some expert witnesses, who after comparing the will with
other writings or letters of the deceased, have come to the conclusion that
such will has not been written by the hand of the deceased. (Sec. 50, Rule
123). And the court, in view of such contradictory testimony may use its own
visual sense, and decide in the face of the document, whether the will
submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only guaranty
of authenticity3 the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who declare
that it was in the handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting? His witnesses who
know testator's handwriting have not examined it. His experts can not testify,
because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor
will, therefore, be caught between the upper millstone of his lack of
knowledge of the will or the form thereof, and the nether millstone of his
inability to prove its falsity. Again the proponent's witnesses may be honest
and truthful; but they may have been shown a faked document, and having
no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge
that none could convict them of perjury, because no one could prove that
they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured
witnesses to testify as to the handwriting could be tested by exhibiting to
them other writings sufciently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it?
His knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document which
he believed was in the deceased's handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not
only as to the execution, but also as to the contents of the will. Does the law
permit such a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of
a lost or destroyed will by secondary evidence the testimony of witnesses,
in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec.
46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen4 an implied admission that
such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its
identity to be established by the three witnesses who depose that they have
no reasonable doubt that the will was written by the testator (Art. 691). And if
the judge considers that the identity of the will has been proven he shall
order that it be led (Art. 693). All these, imply presentation of the will itself.
Art. 692 bears the same implication, to a greater degree. It requires that the
surviving spouse and the legitimate ascendants and descendants be
summoned so that they may make "any statement they may desire to submit
with respect to the authenticity of the will." As it is universally admitted that
the holographic will is usually done by the testator and by himself alone, to
prevent others from knowing either its execution or its contents, the above
article 692 could not have the idea of simply permitting such relatives to state
whether they know of the will, but whether in the face of the document itself
they think the testator wrote it. Obviously, this they can't do unless the will
itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice
of either complying with the will if they think it authentic, or to oppose it, if
they think it spurious.5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not
essential, because anyway the relatives may oppose, the answer is that their
opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
We nd conrmation of these ideas--about exhibition of the document itself--
in the decision of the Supreme Court of Spain of June 5, 1925, which denied
protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of
allegations and testimonial evidence (which was controverted), ascribing the
mutilation to the opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will itself, whole
and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo
segundo del articulo 688 del Codigo civil, que para que sea valido el
testamento olografo debera estar escrito todo el y rmado por testador, con
expression del ao, mes y dia en que se otorque, resulta evidente que para
la validez y ecacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se Ilenaron todos esos
requisitos, sino que de la expresada redaccion el precepto legal, y por el
tiempo en que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de ser
presentado a la Autoridad competente, para au adveracion y protocolizacion;
y como consecuencia ineludible de ello, forzoso es afrmar que el de autos
carece de validez y acacia, por no estarrmado por el testador, cualquiera
que sea la causa de la falta de rma, y sin perjuicio de las acciones que
puedan ejercitar los perjudicados, bien para pedir indemnizacion por el
perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si
procediere, por constituir dicha omision un defecto insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E
depues que los herederos e sus jos ovieren esta manda, fasta ... annos
muestrenla al obispo de la tierra, o al juez fasta VI meses y el obispo o el
juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel
que zo la manda; e por aquellos escriptos, si semjara la letra de la manda,
sea conrmada la manda. E depues que todo esto fuere connoscido, el
obispo o el juez, o otras testimonios conrmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with
specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil
Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that
the execution and the contents of a lost or destroyed holographic will may not
be proved by the bare testimony of witnesses who have seen and/or read
such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic
wills. We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may
rest on the sufciency, rather the insufciency, of the evidence presented by
petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence
when lost or destroyed. The difference lies in the nature of the wills. In the
rst, the only guarantee of authenticity is the handwriting itself; in the second,
the testimony of the subscribing or instrumental witnesses (and of the notary,
now). The loss of the holographic will entails the loss of the only medium of
proof; if the ordinary will is lost, the subscribing witnesses are available to
authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And
if they were intimates or trusted friends of the testator they are not likely to
end themselves to any fraudulent scheme to distort his wishes. Last but not
least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9
only one man could engineer the fraud this way: after making a clever or
passable imitation of the handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see and read the forgery;
and the latter, having no interest, could easily fall for it, and in court they
would in all good faith afrm its genuineness and authenticity. The will having
been lost the forger may have purposely destroyed it in an "accident"
the oppositors have no way to expose the trick and the error, because the
document itself is not at hand. And considering that the holographic will may
consist of two or three pages, and only one of them need be signed, the
substitution of the unsigned pages, which may be the most important ones,
may go undetected.
If testimonial evidence of holographic wills be permitted, one more
objectionable feature feasibility of forgery would be added to the
several objections to this kind of wills listed by Castan, Sanchez Roman and
Valverde and other well-known Spanish Commentators and teachers of Civil
Law.10
One more fundamental difference: in the case of a lost will, the three
subscribing witnesses would be testifying to a fact which they saw, namely
the act of the testator of subscribing the will; whereas in the case of a lost
holographic will, the witnesses would testify as to their opinion of the
handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting
itself is not at hand.
Turning now to the evidence presented by the petitioner, we nd ourselves
sharing the trial judge's disbelief. In addition to the dubious circumstances
described in the appealed decision, we nd it hard to believe that the
deceased should show her will precisely to relatives who had received
nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if
she wanted so much to conceal the will from her husband, why did she not
entrust it to her beneciaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged execution
of the will.
In ne, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so
tainted with improbabilities and inconsistencies that it fails to measure up to
that "clear and distinct" proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment afrmed, with costs against petitioner.
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF
RICARDO B. BONILLA deceased, MARCELA RODELAS, petitioner-
appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

RELOVA, J.:
This case was certied to this Tribunal by the Court of Appeals for nal
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant led a petition with the Court of First
Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla
and the issuance of letters testamentary in her favor. The petition, docketed
as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza
Bonilla, Wilferine Bonilla Treyes Expedita Bonilla Frias and Ephraim Bonilla
on the following grounds:
(1) Appellant was estopped from claiming that the deceased left a will by
failing to produce the will within twenty days of the death of the testator as
required by Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will did not contain a
disposition of property after death and was not intended to take effect after
death, and therefore it was not a will
(3) The alleged hollographic will itself,and not an alleged copy thereof, must
be produced, otherwise it would produce no effect, as held in Gam v. Yap,
104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or otherwise, executed
and attested as required by law.
The appellees likewise moved for the consolidation of the case with another
case Sp. Proc. No, 8275). Their motion was granted by the court in an order
dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the
appellees moved again to dismiss the petition for the probate of the will. They
argued that:
(1) The alleged holographic was not a last will but merely an instruction as to
the management and improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be proved by secondary
evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the
court in its order of February 23, 1979.
The appellees then led a motion for reconsideration on the ground that the
order was contrary to law and settled pronouncements and rulings of the
Supreme Court, to which the appellant in turn led an opposition. On July 23,
1979, the court set aside its order of February 23, 1979 and dismissed the
petition for the probate of the will of Ricardo B. Bonilla. The court said:
... It is our considered opinion that once the original copy of the holographic
will is lost, a copy thereof cannot stand in lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the Supreme Court held that
'in the matter of holographic wills the law, it is reasonable to suppose,
regards the document itself as the material proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed
on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view
of the lapse of more than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the will could not be
located shows to our mind that the decedent had discarded before his death
his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the
Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that the
trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL.
The only question here is whether a holographic will which was lost or cannot
be found can be proved by means of a photostatic copy. Pursuant to Article
811 of the Civil Code, probate of holographic wills is the allowance of the will
by the court after its due execution has been proved. The probate may be
uncontested or not. If uncontested, at least one Identifying witness is
required and, if no witness is available, experts may be resorted to. If
contested, at least three Identifying witnesses are required. However, if the
holographic will has been lost or destroyed and no other copy is available,
the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings
of the testator. In the case of 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.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED
G.R. No. L-40207 September 28, 1984
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.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming
to be the sole heir of his deceased sister, Natividad K. Kalaw, led a petition
before the Court of First Instance of Batangas, Branch VI, Lipa City, for the
probate of her holographic Will executed on December 24, 1968.
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.
1. It is my will that I'll be burried 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
The holographic Will, as rst written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article 814
of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a
holographic will the testator must authenticate the same by his full signature.
ROSA's position was that the holographic Will, as rst written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3,
197 3, reading in part:
The document Exhibit "C" was submitted to the National Bureau of
Investigation for examination. The NBI reported that the handwriting, the
signature, the insertions and/or additions and the initial were made by one
and the same person. Consequently, Exhibit "C" was the handwriting of the
decedent, Natividad K. Kalaw. The only question is whether the win, Exhibit
'C', should be admitted to probate although the alterations and/or insertions
or additions above-mentioned were not authenticated by the full signature of
the testatrix pursuant to Art. 814 of the Civil Code. The petitioner contends
that the oppositors are estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel to submit the
Document to the NBI FOR EXAMINATIONS. This is untenable. The parties
did not agree, nor was it impliedly understood, that the oppositors would be
in estoppel.
The Court nds, therefore, that the provision of Article 814 of the Civil Code
is applicable to Exhibit "C". Finding the insertions, alterations and/or
additions in Exhibit "C" not to be authenticated by the full signature of the
testatrix Natividad K. Kalaw, the Court will deny the admission to probate of
Exhibit "C".
WHEREFORE, the petition to probate Exhibit "C" as the holographic will of
Natividad K. Kalaw is hereby denied.
SO ORDERED.
From that Order, 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. Reconsideration was denied in an Order, dated November 2,
1973, on the ground that "Article 814 of the Civil Code being , clear and
explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the Order
dated November 2, 1973 denying reconsideration, ROSA led this Petition
for Review on certiorari on the sole legal question of 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.
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.1 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." 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 rst written should be
given efcacy 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 afxing her full signature,
The ruling in Velasco, supra, must be held conned to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only
the efcacy 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. As Manresa had stated in his commentary on Article 688 of the
Spanish Civil Code, whence Article 814 of the new Civil Code was derived:
... No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia
que no declara la nulidad de un testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas por el testador bajo
su rnia segun previene el parrafo tercero del mismo, porque, en realidad, tal
omision solo puede afectar a la validez o ecacia de tales palabras, y nunca
al testamento mismo, ya por estar esa disposicion en parrafo aparte de
aquel que determine las condiciones necesarias para la validez del
testamento olografo, ya porque, de admitir lo contrario, se Ilegaria al absurdo
de que pequeas enmiendas no salvadas, que en nada afectasen a la parte
esencial y respectiva del testamento, vinieran a anular este, y ya porque el
precepto contenido en dicho parrafo ha de entenderse en perfecta armonia y
congruencia con el art. 26 de la ley del Notariado que declara nulas las
adiciones apostillas entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, paro
no el documento que las contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no tengan importancia ni
susciten duda alguna acerca del pensamiento del testador, o constituyan
meros accidentes de ortograa o de purez escrituraria, sin trascendencia
alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este
ultimo fallo, es preciso que las tachaduras, enmiendas o entrerrenglonados
sin salvar saan de pala bras que no afecter4 alteren ni uarien de modo
substancial la express voluntad del testador maniesta en el documento. Asi
lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo un
testamento olografo por no estar salvada por el testador la enmienda del
guarismo ultimo del ao en que fue extendido 3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby afrmed in toto. No
costs.
SO ORDERED.
Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.
Relova, J., took no part.


Separate Opinions

TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual nding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I nd it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be noted that the rst
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial court's factual nding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.


Separate Opinions
TEEHANKEE, J., concurring:
I concur. Rosa, having appealed to this Court on a sole question of law, is
bound by the trial court's factual nding that the peculiar alterations in the
holographic will crossing out Rosa's name and instead inserting her brother
Gregorio's name as sole heir and "sole executrix" were made by the testatrix
in her own handwriting. (I nd it peculiar that the testatrix who was obviously
an educated person would unthinkingly make such crude alterations instead
of consulting her lawyer and writing an entirely new holographic wig in order
to avoid any doubts as to her change of heir. It should be noted that the rst
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out "sister Rosa K. Kalaw" and inserting "brother Gregorio
Kalaw" as "sole executrix" is initialed.) Probate of the radically altered will
replacing Gregorio for Rosa as sole heir is properly denied, since the same
was not duly authenticated by the full signature of the executrix as
mandatorily required by Article 814 of the Civil Code. The original unaltered
will naming Rosa as sole heir cannot, however, be given effect in view of the
trial court's factual nding that the testatrix had by her own handwriting
substituted Gregorio for Rosa, so that there is no longer any will naming
Rosa as sole heir. The net result is that the testatrix left no valid will and both
Rosa and Gregorio as her next of kill succeed to her intestate estate.