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G.R. No.

L-37453 May 25, 1979


RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
This is a petition for review of the decision of the Court of Appeals, First Division,

promulgated on May 4, 1973
in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December 15,
1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court
of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have
been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary
and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the
municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and
petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her
husband and children, lived with the deceased at the latters residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel
Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and the
acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at
the end of the will on page four and at the left margin of all the pages. The attestation clause, which is found
on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa
gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala
ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang
Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang
nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at
nasa itaas ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the
left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat
isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng
testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso
D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their respective
places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two
Gimpayas. Their signatures also appear on the left margin of all the other pages. The WW is paged by
typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and
underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in
accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her
obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de
Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein
petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea, Marcial,
Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda Santiago, who was described
in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng
isang tunay na anak" and named as universal heir and executor, were bequeathed all properties and estate,
real or personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses, debts
and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting
to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and influence
on the part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a quo
rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of the
deceased was procured through undue and improper pressure and influence on the part of
the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the alleged
execution of the purported will, the deceased lacked testamentary capacity due to old age
and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that the purported will
of the deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate, Exhibit
'F' is not the purported win allegedly dictated by the deceased, executed and signed by her,
and attested by her three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig and testament
of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue
decided on appeal was whether or not the will in question was executed and attested as required by law. The
Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now
under review, holding that the will in question was signed and executed by the deceased Isabel Gabriel on
April 15, 1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required
by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid decision and such motion was
opposed by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their respective
Memoranda, and on August 28, 1973, respondent Court, Former Special First Division, by Resolution

denied
the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance with law
because the same was signed on several occasions, that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign the will in the presence of each
other.
The resolution of the factual issue raised in the motion for reconsideration hinges on the
appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record, There is no reason to alter the findings of fact in the decision of this Court
sought to be set aside.
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused
its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of fact and
conclusions of the trial court. The Court, after deliberating on the petition but without giving due course
resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which
comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the issues raised and the
arguments adduced in the petition, as well as the Comment of private respondent thereon, We denied the
petition by Resolution on November 26, 1973, the question raised being factual and for insufficient showing
that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for Reconsideration
10

which private respondent answered by way of her Comment or Opposition filed on January 15, 1974. A Reply
and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested
as required by law when there was absolutely no proof that the three instrumental witnesses were credible
witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of
the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten
words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses
were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel
could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not physically
present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as
proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of
witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the trial
court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted
and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F",
the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and
content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and
conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan
vs. CA (L-27488, June 30, 1970, 33 SCRA 737, 743)
12
and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA
393), and in the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and
Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of
Chan vs. CA, this Court said:
... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been
well-settled that the jurisdiction of tills Court in cases brought to us from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in
a decision exactly a month later, this Court, speaking through the then Justice Laurel, it was held that the same
principle is applicable, even if the Court of Appeals was in disagreement with the lower court as to the weight
of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not
reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us
particularly because its premises are borne out by the record or based upon substantial evidence and what is
more, when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a
review of the decision of the Court of Appeals because only legal questions may be raised. The Supreme Court
is not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to be
reversed. Where the findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny
by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We
have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's
assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the
document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that
the three instrumental witnesses were credible witnesses. She argues that the require. ment in Article 806,
Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with
before an alleged last will and testament may be admitted to probate and that to be a credible witness, there
must be evidence on record that the witness has a good standing in his community, or that he is honest and
upright, or reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the
witness are first established, his testimony may not be favorably considered. Petitioner contends that the
term "credible" is not synonymous with "competent" for a witness may be competent under Article 820 and
821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged
that the term "credible" as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wigs
with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being
a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 806 of this Code. "Art. 821. The following are disqualified from being
witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the
trial as to his good standing in the community, his reputation for trustworthythiness and reliableness, his
honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the
soundness of his mind can be shown by or deduced from his answers to the questions propounded to him,
that his age (18 years or more) is shown from his appearance, testimony , or competently proved otherwise,
as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of
the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject
petitioner's contention that it must first be established in the record the good standing of the witness in the
community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such
attributes are presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code
should be given the same meaning it has under the Naturalization Law where the law is mandatory that the
petition for naturalization must be supported by two character witnesses who must prove their good standing
in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two
witnesses in a petition for naturalization are character witnesses in that being citizens of the Philippines, they
personally know the petitioner to be a resident of the Philippines for the period of time required by the Act
and a person of good repute and morally irreproachable and that said petitioner has in their opinion all the
qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the
provisions of the Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the
execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the
respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in
naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code
of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde
Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the
evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept
and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much
less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the testator's name written by some other person
in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses
in the presence of the testator and of one another, While the petitioner submits that Article 820 and 821 of
the New Civil Code speak of the competency of a witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or
more credible witnesses, petitioner concludes that the term credible requires something more than just being
competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a
credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms
and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on
record to show that the instrumental witnesses are credible in themselves, that is, that they are of good
standing in the community since one was a family driver by profession and the second the wife of the driver, a
housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely
a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix But the relation of
employer and employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate
Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in
Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that
portion of Article 820 which says "may be Q witness to the execution of a will mentioned in Article 805 of this
Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means
" competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that
a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost wig must be clearly and distinctly proved by at least two credible
witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon
hearsay. " emphasis supplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620
of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen years
or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will.
This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and
employee, or being a relative to the beneficiary in a win, does not disqualify one to be a witness to a will. The
main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and
literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to
credence. There is a long line of authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or other
cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent witness.'
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means 'competent witness that
is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ St. art.
8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be attested by two
credible witnesses means competent; witnesses who, at the time of attesting the will, are
legally competent to testify, in a court of justice, to the facts attested by subscribing the will,
the competency being determined as of the date of the execution of the will and not of the
timr it is offered for probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent witnesses that
is, such persons as are not legally disqualified from testifying in courts of justice, by reason of
mental incapacity, interest, or the commission of crimes, or other cause excluding them from
testifying generally, or rendering them incompetent in respect of the particular subject matter
or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p,
343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the
statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the appreciation of his
testimony and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in
the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the
Supreme Court held and ruled that: "Competency as a witness is one thing, and it is another to be a credible
witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a
witness upon a given matter because he is competent, but may thereafter decide whether to believe or not to
believe his testimony." In fine, We state the rule that the instrumental witnesses in Order to be competent
must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications
under Article 821 and for their testimony to be credible, that is worthy of belief and entitled to credence, it is
not mandatory that evidence be first established on record that the witnesses have a good standing in the
community or that they are honest and upright or reputed to be trustworthy and reliable, for a person is
presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses
must be competent and their testimonies must be credible before the court allows the probate of the will they
have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have
introduced prior and independent proof of the fact that the witnesses were "credible witnesses that is, that
they have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the
findings of fact of the respondent court in finding that the preparation and execution of the will was expected
and not coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence
certificates of the witnesses as to enable him to type such data into the document Exhibit "F", in holding that
the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all present in the same occasion, in holding
credible that Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding
that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel
Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that the grave
contradictions, evasions and misrepresentations of the witnesses (subscribing and notary) presented by the
petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that the findings of fact
of the appellate court are binding and controlling which We cannot review, subject to certain exceptions
which We win consider and discuss hereinafter. We are convinced that the appellate court's findings are
sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness characterizing
the trip of the testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it was coincidental that Atty. Paraiso was
available at the moment impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the
visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no
prior appointment with him, but he explained that he was available for any business transaction on that day
and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate
court is amply based on the testimony of Celso Gimpaya that he was not only informed on the morning of the
day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her husband
Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to
the lawyer's office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya
obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence
certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence
certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly
observed that there was nothing surprising in these facts and that the securing of these residence certificates
two days and one day, respectively, before the execution of the will on April 15, 1961, far from showing an
amazing coincidence, reveals that the spouses were earlier notified that they would be witnesses to the
execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was
planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses
that they started from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself,
then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there,
all the three witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten
to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the will was
executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that
he told her that if she really wanted to execute her will, she should bring with her at least the Mayor of
Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate
from a physician notwithstanding the fact that he believed her to be of sound and disposition mind. From this
evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel
and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law
office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit ' L which
the petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective residence certificates)
immediately upon their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso
himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We
cannot agree with petitioner's contention. We find no contradiction for the, respondent Court held that on the
occasion of the will making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such
list was given the lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses
on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed
and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed and signed on
the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix
and the witnesses before a notary public, the same is a public document executed and attested through the
intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal
manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must
be evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407).
We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under
the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion merits Our approval because tills conclusion is
supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F",
beneath the typewritten words "names", "Res. Tax Cert. date issued" and place issued the only name of Isabel
Gabriel with Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal appears to
be in typewritten form while the names, residence tax certificate numbers, dates and places of issuance of
said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this
coincides with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the
appointment of the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket
number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit
"F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly
woman more than eighty-one years old and had been suffering from a brain injury caused by two severe
blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can
rule that this is a finding of fact which is within the competency of the respondent appellate court in
determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and
review, We nevertheless hold that the conclusion reached by the Court of Appeals that the testatrix dictated
her will without any note or memorandum appears to be fully supported by the following facts or evidence
appearing on record. Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she
actively managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until June
4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor of Rizal
Province and acted as coadministratrix in the Intestate Estate of her deceased husband Eligio Naval. The text
of the win was in Tagalog, a dialect known and understood by her and in the light of all the circumstances, We
agree with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact
unanimously testified to by the three attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and documentary
is, according to the respondent court, overwhelming that Matilde Orobia was physically present when the will
was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya.
Such factual finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof
that Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April '15, 1961 along
with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission
that she gave piano lessons to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961
happened to be a Saturday for which reason Orobia could not have been present to witness the will on that
day is purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday,
she gave no piano lessons on that day for which reason she could have witnessed the execution of the will.
Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway,
her presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to
preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present
on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of
the pages of the will, the documentary evidence which is the will itself, the attestation clause and the notarial
acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that
day of April 15, 1961 and that she witnessed the will by signing her name thereon and acknowledged the same
before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the
best evidence as to the date of signing because it preserves in permanent form a recital of all the material
facts attending the execution of the will. This is the very purpose of the attestation clause which is made for
the purpose of preserving in permanent form a record of the facts attending the execution of the will, so that
in case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved.
(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave
undue importance to the picture-takings as proof that the win was improperly executed, We agree with the
reasoning of the respondent court that: "Matilde Orobia's Identification of the photographer as "Cesar
Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that
the photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law
does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia
mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was
present when the will was signed because what matters here is not the photographer but the photograph
taken which clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the
respondent Court correctly held: "The trial court gave undue importance to the picture takings, jumping
therefrom to the conclusion that the will was improperly executed. The evidence however, heavily points to
only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke of this
occasion. Hence, their Identification of some photographs wherein they all appeared along with Isabel Gabriel
and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross
examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident
upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer
present was wholly unnecessary if not pointless. What was important was that the will was duly executed and
witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's rationalization in
conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal requisites
for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their
respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that
said contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the
description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big
letters which are of the type in which the will was typewritten but which was Identified by witness Jolly
Bugarin of the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde Orobia to be
Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed unimportant details which could
have been affected by the lapse of time and the treachery of human memory such that by themselves would
not alter the probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28
SCRA 421, 424) for it cannot be expected that the testimony of every person win be Identical and coinciding
with each other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of certain
incidents, after a long series of questionings, and far from being an evidence of falsehood constitute a
demonstration of good faith. In as much as not all those who witness an incident are impressed in like
manner, it is but natural that in relating their impressions, they should not agree in the minor details; hence
the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the
respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence
presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established
exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where
the appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence
have been ignored and overlooked and the significance of which have been misinterpreted by the trial court,
cannot be disputed. Findings of facts made by trial courts particularly when they are based on conflicting
evidence whose evaluation hinges on questions of credibility of contending witnesses hes peculiarly within the
province of trial courts and generally, the appellate court should not interfere with the same. In the instant
case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the record
supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso;" that the trial court's conclusion that Matilde Orobia could not have witnessed anybody signing the
alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she
witnessed only the deceased signing it, is a conclusion based not on facts but on inferences; that the trial court
gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was
improperly executed and that there is nothing in the entire record to support the conclusion of the court a
quo that the will signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only
with Matilde Orobia to witness the signing of her will, then it becomes the duty of the appellate court to
reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of
Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the
petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3)
when there is a grave abuse of discretion; (4) when the presence of each other as required by law. "
Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano
Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained
a medical certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate
what she wanted to be written in the will and the attorney wrote down the dictation of Isabel Gabriel in
Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as
dictated and she affirmed their correctness; the lawyer then typed the will and after finishing the document,
he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end
of the will in the presence of the three witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also
at the left-hand margin of each and every page of the document in the presence also of the said three
witnesses; that thereafter Matilde Orobia attested the will by signing her name at the end of the attestation
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and
the other two witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the
bottom of the attestation clause and at the left-hand margin of the other pages of the document in the
presence of Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will as Page No. 94,
Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of the
will, a photographer took pictures, one Exhibit "G", depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso
Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another,
Exhibit "H", showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring with
her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand
the Identities of the three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on
April 15, 1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the will on the
date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have
dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of
petitioner that it was incredible. This ruling of the respondent court is fully supported by the evidence on
record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief
that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all the
three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that
other than the piece of paper that she handed to said lawyer she had no note or document. This fact jibes with
the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound
disposing memory when she executed her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel
Gabriel's wish to be interred according to Catholic rites the second was a general directive to pay her debts if
any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her
brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee
Rizalina Gabriel and the amount for each legatee the fifth was the institution of the petitioner-appellant,
Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the sixth
disposed of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but
prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling
Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions
enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully
supported by the evidence on record. The conclusions are fully sustained by substantial evidence. We find no
abuse of discretion and We discern no misapprehension of facts. The respondent Court's findings of fact are
not conflicting. Hence, the well-established rule that the decision of the Court of Appeals and its findings of
fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied in the case
at bar in its full force and effect, without qualification or reservation. The above holding simply synthesize the
resolutions we have heretofore made in respect ' to petitioner's previous assignments of error and to which
We have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court
acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings
as to call for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of
Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will
and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on
record is unassailable that: "From the welter of evidence presented, we are convinced that the will in question
was executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing
and witnessing the same in the the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya
sitting around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial register. A few days following the signing of the
will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the
lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told
her that this cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the
proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the
three instrumental witnesses who constitute the best evidence of the will making have testified in favor of the
probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof,
who thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the
testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no
claim whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final
analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and
revise the findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs
against the petitioner. SO ORDERED.















G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who
died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from
the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and
testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court
of First Instance of the Province of La Union for the probation of that will. The probation of the same was
opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No.
1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was
denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased
had on the 16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the
probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the
said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the same
had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the
last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective
parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled
and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following
facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy,
who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920,
the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured
Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had
to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates
the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in
1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa
Gago, the sister of the deceased, who was living in the house with him, when cross-examined by
attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing
consideration and for the reason that the original of Exhibit A has been cancelled by the deceased
father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that the will
in question had been executed with all the formalities required by the law; that the same had been revoked
and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors
were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was
accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any
evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to
prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place
must either remain unproved of be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator,
when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled
or destroyed. The same presumption arises where it is shown that the testator had ready access to the will
and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other
person without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is
never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to
revoke it.
In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion
that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to
probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has
been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them
there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with
the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however,
by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities
and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that
the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
L-26063.)
After a careful examination of the entire record, we are fully persuaded that the will presented for probate
had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And
without any finding as to costs, it is so ordered.







G.R. No. L-2538 September 21, 1951
Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-
appellee,
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants
brought the case on appeal to this Court for the reason that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without
leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz
Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi,
deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918,
(Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon petition filed by the herein
oppositors, the order of the court admitting the will to probate was set aside and the case was reopened.
After hearing, at which both parties presented their evidence, the court rendered decision denying the
probate of said will on the ground that the petitioner failed to prove that the same was executed in
accordance with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed
another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed
as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition
based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2)
that said will has not been executed in the manner required by law and (3) that the will has been subsequently
revoked. But before the second petition could be heard, the battle for liberation came and the records of the
case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution.
As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the
oppositors filed an opposition based on the same grounds as those contained in their former opposition.
Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate
already stated in the early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to
enable her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate
of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands"
and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by
Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding
that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order
to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto
Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will
intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion
captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately
taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will
which she believed would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings No.
8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise
them in these proceedings which are entirely new and distinct and completely independent from the other is
improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case.
They are merely based on the presumptions and conjectures not supported by any proof. For this reason,
counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its
decision.
A careful examination of the evidence available in this case seems to justify this contention. There is indeed no
evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate
of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to
impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from
this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she
informed the court that she was unable to impeach the character of her witness Canuto Perez because of her
inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the
province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing
has also been explained, and it appears that petitioner has filed because his whereabouts could not be found.
Whether this is true or not is also for this Court to determine. It is likewise within the province and function of
the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of
the developments that had taken place in these proceedings which show in bold relief the true nature of the
conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors.
It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on
February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however,
upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside,
over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered
because of the strong opposition of the oppositors who contended that he will had not been executed as
required by law. After the evidence of both parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght
of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she
may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing
the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or
tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her
conscience was clear and bade her to take the only proper step possible under the circumstances, which is to
institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to
probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a
petition for reopening, and over her vigorous objection, the same was granted and the case was reopened.
Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the
order admitting the will to probate was set aside? That was a contingency which petitioner never expected.
Had appellants not filed their opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have
perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their
own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect
her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third
errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel
which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the
allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her
husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire
to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which
was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is
valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs.
Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this
case. Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed
impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts
are; it is enough to point out that they contain many points and circumstances in common. No reason,
therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and
control the present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason
that it was not executed in conformity with the provisions of section 618 of the Code of Civil
Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch
as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is
archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They
maintain that said ruling is no longer controlling but merely represents the point of view of the minority and
should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil
Procedure, which governs the revocation of wills, is of American origin and as such should follow the
prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this
contention. And these authorities hold the view, that "an express revocation is immediately effective upon the
execution of the subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view
appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant
to fall in line with the assertion that is now the prevailing view in the United States. In the search we have
made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps
because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation
of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the
doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57,
which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the
present trend of American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which permit
the revocation of a will by another writing provide that to be effective as a revocation, the writing
must be executed with the same formalities which are required to be observed in the execution of a
will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has been held that a
writing fails as a revoking instrument where it is not executed with the formalities requisite for the
execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by
cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not executed in the manner required
for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid
because of the incapacity of the testator, or of undue influence can have no effect whatever as a
revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though the latter contains a clause expressly
revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is
no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will
or other writing executed with the same formalities as are required in the execution of wills, a
defectively executed will does not revoke a prior will, since it cannot be said that there is a writing
which complies with the statute. Moreover, a will or codicil which, on account of the manner in which
it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a
former will, even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume
123, there appear many authorities on the "application of rules where second will is invalid", among which a
typical one is the following:
It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort
vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated.
They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for
abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will,
codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case
of wills", simply because it was denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still
be given effect because of the presumption that it was deliberately revoked by the testator himself. The
oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory
clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original of the
1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The
only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave
the original and copies to the testator himself and apparently they remained in his possession until he
executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and
petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among
the papers or files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein
petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first
will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that
there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter
cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will
was but the necessary consequence of the testator's belief that the revocatory clause contained in the
subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that
the earlier will can still be admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the
testator cancels or destroys a will or executes an instrument intended to revoke a will with a present
intention to make a new testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed as a consequence
of a mistake of law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another will
so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the
efficacy of a new disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to
be made as a substitute is inoperative, the revocation fails and the original will remains in full force.
(Gardner, pp. 232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition
upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive
conditions, and hence prevents the revocation of the original will. But a mere intent to make at some
time a will in the place of that destroyed will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner,
p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the testator could
be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect
of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of
1939 has been validly executed and would be given due effect. The theory on which this principle is predicated
is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two
wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake
as to his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution
of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez,
and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the
only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is
sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of
Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will
upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will
had been executed in the manner required by law. We have read their testimony and we were impressed by
their readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.