Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 1439

March 19, 1904

ANTONIO CASTAEDA, plaintiff-appellee,

vs.
JOSE E. ALEMANY, defendant-appellant.
Ledesma, Sumulong and Quintos for appellant.
The court erred in holding that all legal formalities had been complied with in the execution of the will
of Doa Juana Moreno, as the proof shows that the said will was not written in the presence of under
the express direction of the testratrix as required by section 618 of the Code of Civil Procedure.
Antonio V. Herrero for appellee.
The grounds upon which a will may be disallowed are limited to those mentioned in section 634 of
the Code of Civil Procedure.
WILLARD, J.:
(1) The evidence in this case shows to our satisfaction that the will of Doa Juana Moreno was duly
signed by herself in the presence of three witnesses, who signed it as witnesses in the presence of
the testratrix and of each other. It was therefore executed in conformity with law.
There is nothing in the language of section 618 of the Code of Civil Procedure which supports the
claim of the appellants that the will must be written by the testator himself or by someone else in his
presence and under his express direction. That section requires (1) that the will be in writing and (2)
either that the testator sign it himself or, if he does sign it, that it be signed by some one in his
presence and by his express direction. Who does the mechanical work of writing the will is a matter
of indifference. The fact, therefore, that in this case the will was typewritten in the office of the lawyer
for the testratrix is of no consequence. The English text of section 618 is very plain. The mistakes in
translation found in the first Spanish edition of the code have been corrected in the second.
(2) To establish conclusively as against everyone, and once for all, the facts that a will was executed
with the formalities required by law and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of a will. (Sec. 625.) The judgment in
such proceedings determines and can determine nothing more. In them the court has no power to
pass upon the validity of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. It could not in this case make any decision upon the
question whether the testratrix had the power to appoint by will a guardian for the property of her
children by her first husband, or whether the person so appointed was or was not a suitable person
to discharge such trust.
All such questions must be decided in some other proceeding. The grounds on which a will may be
disallowed are stated the section 634. Unless one of those grounds appears the will must be

allowed. They all have to do with the personal condition of the testator at the time of its execution
and the formalities connected therewith. It follows that neither this court nor the court below has any
jurisdiction in his proceedings to pass upon the questions raised by the appellants by the assignment
of error relating to the appointment of a guardian for the children of the deceased.
It is claimed by the appellants that there was no testimony in the court below to show that the will
executed by the deceased was the same will presented to the court and concerning which this
hearing was had. It is true that the evidence does not show that the document in court was
presented to the witnesses and identified by them, as should have been done. But we think that we
are justified in saying that it was assumed by all the parties during the trial in the court below that the
will about which the witnesses were testifying was the document then in court. No suggestion of any
kind was then made by the counsel for the appellants that it was not the same instrument. In the last
question put to the witness Gonzales the phrase "this will" is used by the counsel for the appellants.
In their argument in that court, found on page 15 of the record, they treat the testimony of the
witnesses as referring to the will probate they were then opposing.
The judgment of the court below is affirmed, eliminating therefrom, however, the clause "el cual
debera ejecutarse fiel y exactamente en todas sus partes." The costs of this instance will be charged
against the appellants.
Arellano, C. J., Torres, Cooper, Mapa, McDonough and Johnson, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
January 19, 1906
G.R. No. 1641
GERMAN JABONETA, plaintiff-appellant,
vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario
Jaboneta, deceased, because the lower court was of the opinion from the evidence
adduced at the hearing that Julio Javellana, one of the witnesses, did not attach his
signature thereto in the presence of Isabelo Jena, another of the witnesses, as
required by the provisions of section 618 of the Code of Civil Procedure.
The following is a copy of the evidence which appears of record on this particular
point, being a part of the testimony of the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

I signed it first, and afterwards Aniceto and the others.

Q.

1641

Who were those others to whom you have just referred?

A.
1641
After the witness Aniceto signed the will I left the house,
because I was in a hurry, and at the moment when I was leaving I saw Julio
Javellana with the pen in his hand in position ready to sign (en actitud de
firmar). I believe he signed, because he was at the table. . . .
Q.
1641
State positively whether Julio Javellana did or did not sign as a
witness to the will.
A.
1641
I can't say certainly, because as I was leaving the house I saw
Julio Javellana with the pen in his hand, in position ready to sign. I believe he
signed.
Q.

1641

Why do you believe Julio Javellana signed?

A.
1641
Because he had the pen in his hand, which was resting on the
paper, though I did not actually see him sign.
Q.

1641

Explain this contradictory statement.

A.
1641
After I signed I asked permission to leave, because I was in a
hurry, and while I was leaving Julio had already taken the pen in his hand, as
it appeared, for the purpose of signing, and when I was near the door I
happened to turn my face and I saw that he had his hand with the pen resting
on the will, moving it as if for the purpose of signing.
Q.
1641
State positively whether Julio moved his hand with the pen as
if for the purpose of signing, or whether he was signing
A.

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been
questioned by any of the parties to the proceedings, but the court, nevertheless,
found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the
following circumstances the document in question, which has been presented
for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered
that the document in question be written, and calling Julio Javellana, Aniceto
Jalbuena, and Isabelo Jena as witnesses, executed the said document as his
will. They were all together, and were in the room where Jaboneta was, and
were present when he signed the document, Isabelo Jena signing afterwards
as a witness, at his request, and in his presence and in the presence of the

other two witnesses. Aniceto Jalbuena then signed as a witness in the

presence of the testator, and in the presence of the other two persons who
signed as witnesses. At that moment Isabelo Jena, being in a hurry to leave,
took his hat and left the room. As he was leaving the house Julio Javellana
took the pen in his hand and put himself in position to sign the will as a
witness, but did not sign in the presence of Isabelo Jena; but nevertheless,
after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the
signature of Javellana was not signed in the presence of Jena, in compliance with
the provisions of section 618 of the Code of Civil Procedure. The fact that Jena was
still in the room when he saw Javellana moving his hand and pen in the act of
affixing his signature to the will, taken together with the testimony of the remaining
witnesses which shows that Javellana did in fact there and then sign his name to the
will, convinces us that the signature was affixed in the presence of Jena. The fact
that he was in the act of leaving, and that his back was turned while a portion of the
name of the witness was being written, is of no importance. He, with the other
witnesses and the testator, had assembled for the purpose of executing the
testament, and were together in the same room for that purpose, and at the
moment when the witness Javellana signed the document he was actually and
physically present and in such position with relation to Javellana that he could see
everything which took place by merely casting his eyes in the proper direction, and
without any physical obstruction to prevent his doing so, therefore we are of opinion
that the document was in fact signed before he finally left the room.
The purpose of a statutory requirement that the witness sign in the presence
of the testator is said to be that the testator may have ocular evidence of the
identity of the instrument subscribed by the witness and himself, and the
generally accepted tests of presence are vision and mental apprehension.
(See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the
witnesses are together for the purpose of witnessing the execution of the will, and
in a position to actually see the testator write, if they choose to do so; and there are
many cases which lay down the rule that the true test of vision is not whether the
testator actually saw the witness sign, but whether he might have seen him sign,
considering his mental and physical condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the
testator and the witnesses are equally applicable in determining whether the
witnesses signed the instrument in the presence of each other, as required by the
statute, and applying them to the facts proven in these proceedings we are of
opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the
ground stated in the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in
these proceedings was satisfactorily proven to be the last will and testament of
Macario Jaboneta, deceased, and that it should therefore be admitted to probate.

The judgment of the trial court is reversed, without especial condemnation of costs,
and after twenty days the record will be returned to the court form whence it came,
where the proper orders will be entered in conformance herewith. So ordered.
Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
Republic of the PhilippinesSUPREME COURTManila
EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees, vs.NARCISA RIMANDO, defendant-appellant.

Valerio Fontanilla and Andres Asprer for appellant.Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was
present in the small room where it was executed at the time when the testator and the other
subscribing witnesses attached their signatures; or whether at that time he was outside, some
eight or ten feet away, in a large room connecting with the smaller room by a doorway, across
which was hung a curtain which made it impossible for one in the outside room to see the
testator and the other subscribing witnesses in the act of attaching their signatures to the
instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the
small room with the testator and the other subscribing witnesses at the time when they attached
their signatures to the instrument, and this finding, of course, disposes of the appeal and
necessitates the affirmance of the decree admitting the document to probate as the last will and
testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of
vital importance in the determination of this case, as he was of opinion that under the doctrine
laid down in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the
subscribing witnesses was in the outer room when the testator and the other describing
witnesses signed the instrument in the inner room, had it been proven, would not be sufficient in
itself to invalidate the execution of the will. But we are unanimously of opinion that had this
subscribing witness been proven to have been in the outer room at the time when the testator
and the other subscribing witnesses attached their signatures to the instrument in the inner
room, it would have been invalid as a will, the attaching of those signatures under
circumstances not being done "in the presence" of the witness in the outer room. This because
the line of vision from this witness to the testator and the other subscribing witnesses would
necessarily have been impeded by the curtain separating the inner from the outer one "at the
moment of inscription of each signature."

In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each other
sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing
witnesses may be held to have executed the instrument in the presence of each other if it
appears that they would not have been able to see each other sign at that moment, without
changing their relative positions or existing conditions. The evidence in the case relied upon by
the trial judge discloses that "at the moment when the witness Javellana signed the document
he was actually and physically present and in such position with relation to Jaboneta that he
could see everything that took place by merely casting his eyes in the proper direction and
without any physical obstruction to prevent his doing so." And the decision merely laid down the
doctrine that the question whether the testator and the subscribing witnesses to an alleged will
sign the instrument in the presence of each other does not depend upon proof of the fact that
their eyes were actually cast upon the paper at the moment of its subscription by each of them,
but that at that moment existing conditions and their position with relation to each other were
such that by merely casting the eyes in the proper direction they could have seen each other
sign. To extend the doctrine further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this particular condition is
prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate
as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this
instance against the appellant.
Arellano, C. J., Mapa, Moreland and Trent, JJ., concur.

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.
Facts: After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, a special proceeding entitled "In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator.
He delivered to the lower court a document purporting to be the holographic
Will of the deceased Bibiana Roxas de Jesus. Petitioner Simeon R. Roxas

testified that he found a notebook of the deceased Bibiana detailing a letterwin addressed to her children and entirely written and signed in her
handwriting. 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 testified that
the letter dated "FEB./61 " is the holographic Will of their deceased mother,
Bibiana. Both recognized the handwriting of their mother and positively
identified her signature. They further testified that their deceased mother
understood English, the language in which the holographic Will is written,
and that the date "FEB./61 " was the date when said Will was executed by
their mother.
On the other hand, respondent Luz R. Henson, another compulsory heir, filed
an "opposition to probate". She 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.
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.
Issue: Whether or not the date "FEB./61 " appearing on the holographic Will
of the deceased Bibiana Roxas de Jesus is a valid compliance with Article 810
of the Civil Code.
Ruling: Yes. This will not be the first time that this Court departs from a strict
and literal application of the statutory requirements regarding the due
execution of Wills. We should not overlook the liberal trend of the Civil Code
in the manner of execution of Wills, the purpose of which, in case of doubt is
to prevent intestacy.

As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, if the testator, in executing his
Will, attempts to comply with all the requisites, although compliance is not
literal, it is sufficient if the objective or purpose sought to be accomplished
by such requisite is actually attained by the form followed by the testator.
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 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 sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.
Therefore, probate of the holographic Will should be allowed under the
principle of substantial compliance.
ART. 810 of the Civil Code. 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.
74 AZAOLA v. SINGSON
G.R. No. L-14003 5, 196

FACTS:

An appeal from a judgment of the Court of First Instance of Rizal.

This case involves the determination of the quantity of evidence required for the
probate of a holographic will.

September 9, 1957: Fortunata S. Vda. de Yance died; Francisco Azaola, petitioner

herein for probate, submitted the said holographic will whereby Maria Alilagros

Azaola was made the sole heir as against the nephew of the deceased Cesario
Singson (respondent).

Francisco Azaola testified that he saw the holographic will a month, more or less,
before the death of the testatrix, as the same was handed to him and his wife; he
also testified that he recognized all the signatures appearing in the holographic will
as the handwriting of the testatrix.
Additional evidence: residence certificates to show the signatures of the testatrix for
comparison purposes. Azaola testified that the penmanship appearing in the said
documentary evidence is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix (as contained in the
stenographic notes).
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. The lone
witness presented by the proponent "did not prove sufficiently that the body of the
will was written in the handwriting of the testatrix.

ISSUE: WON three witnesses are necessary to establish the handwriting/ signature contained in
a will.

HELD: NO. 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.

RATIO:

Where the will is holographic, no witnesses need to be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd
results are to be avoided. The rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.

Art. 811, Civil Code: In the probate of a holographic will, it shall be necessary that
at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator.
If the will is contested, at least three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and
if the court deems it necessary, expert testimony may be resorted to.

Since the authenticity of the will was not contested, the proponent was not required
to produce more than one witness. Even if the genuineness of the holographic will

were contested, the Court is of the opinion that Article 811 of our present Civil Code
cannot be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate
denied.

Since no witness may have been present at the execution of a holographic will (none
being required by law) the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must be witnesses "who
know the handwriting and signature of the testator" and who can declare truthfully
"that the will and the signature are in the handwriting of the testator."

Compliance with the rule of paragraph 1 of Article 811 may even be impossible. This
is evidently the reason for the second paragraph of Art. 811. The law foresees the
possibility that no qualified witness may be found (or may refuse to testify), and
provides for resort to expert evidence to supply the deficiency.

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.

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. 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.
FIRST DIVISION

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, filed 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 first 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 first 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 finds, 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 filed 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 first written should be given efficacy is to disregard the seeming change of mind of the
testatrix. But that change of mind can neither be given effect because she failed to authenticate it in the
manner required by law by affixing her full signature,
The ruling in Velasco, supra,must be held confined to such insertions, cancellations, erasures or
alterations in a holographic Will, which affect only the efficacy of the altered words themselves but not the
essence and validity of the Will itself. As it is, with the erasures, cancellations and alterations made by the
testatrix herein, her real intention cannot be determined with certitude. 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 firnia segun previene el parrafo tercero del
mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia 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 pequefias 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 ortografia 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 manifiesta 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 extendido3 (Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of respondent Judge, dated
September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.
Maloto vs. Court of Appeals, G.R. No. 76464 February 29, 1988
Facts:
Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and
Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs commenced an intestate
proceeding for the settlement of their aunt's estate. However, while the case was still in progress the
parties - Aldina, Constancio, Panfilo, and Felino - executed an agreement of extrajudicial settlement of
Adriana's estate. The agreement provided for the division of the estate into four equal parts among the
parties. The Malotos then presented the extrajudicial settlement agreement to the trial court for approval
which the court did approved.
Three years later Atty. Sulpicio Palma, a former associate of Adriana's counseldiscovered a document
entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was
going through some materials inside the cabinet drawer formerly used by Atty. Hervas.
Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by
virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives devises
and legacies to other parties.
Subsequently, Aldina and Constancio, joined by the other devisees and legatees named in the will, fileda
motion for reconsideration and annulment of the proceedings in the intestate proceedings of Adriana and
for the allowance of the will.
Trial court denied their motion,
The petitioner came to SC by way of a petition for certiorari and mandamus assailing the orders of the
trial court. SC dismissed that petition and advised to file a separate proceeding for the probate of the
alleged will. By that petitioner file a separate proceeding for probate of the will.

Significantly, during the investigation the appellate court found out that the will was allegedly burned by
the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix, and found
that the will had been revoked. The CA stated that the presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven.
Issue:
Whether or not the will was revoked by Adriana
Ruling:
Art. 830. No will shall be revoked except in the following cases:
Xxx
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned, torn
cancelled, or obliterated by some other person, without the express direction of the testator, the will may
still be established, and the estate distributed in accordance therewith, if its contents, and due execution,
and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the
Rules of Court.
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute
an effective revocation, unless the destruction is coupled with animus revocandi on the part of the
testator. It is not imperative that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in the presence of the testator. Of
course, it goes without saying that the document destroyed must be the will itself.
"Animus revocandi is only one of the necessary elements for the effective revocation of a last will and
testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by another person in his presence and
under his express direction. There is paucity of evidence to show compliance with these requirements.
For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily established
to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have
been done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place
where the stove (presumably in the kitchen) was located in which the papers proffered as a will were
burned.
SC approved the allowance of Adriana Maloto's last will and testament.
EN BANC
[G.R. No. L-12190. August 30, 1958.]
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP, deceased. FAUSTO E. GAN, petitionerappellant, vs. ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
SYLLABUS

HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED.
The execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.
DECISION
BENGZON, J p:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of
Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first
instance with a petition for the probate of a holographic will allegedly executed by the
deceased, substantially in these words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumusunod:
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan
Rosario E. Gan

2 Bahagi
2 Bahagi

Filomena Alto

1 Bahagi

Beatriz Alto

1 Bahagi

'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana
sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan,
Bulacan, na nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may
kakulagan man ay bahala na ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.'
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had
not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,
1 refused to probate the alleged will. A seventy-page motion for reconsideration failed.
Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution
by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and
Rosario Gan Jimenez, whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin,
Vicente Esguerra, her desire to make a will. She confided however that it would be useless if
her husband discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of
Felicidad, who was then preparing for the bar examinations. The latter replied it could be
done without any witness, provided the document was entirely in her handwriting, signed

and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the
strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street,
Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was
invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative,
Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who
again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a
niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for
the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last
illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a
few hours later, Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of
him by reason of his well-known violent temper, she- delivered it to him. Thereafter, in the
same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not before she had taken
the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart
disease for several years before her death; that she had been treated by prominent
physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May 1950 husband and
wife journeyed to the United States wherein for several weeks she was treated for the
disease; that thereafter she felt well and after visiting interesting places, the couple returned
to this country in August 1950. However, her ailment recurred, she suffered several attacks,
the most serious of which happened in the early morning of the first Monday of November
1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physician's
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient
hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen
were administered. Following the doctor's advice the patient stayed in bed, and did nothing
the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her
side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and could have
made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most
important of which were these: (a) if according to his evidence, the decedent wanted to keep
her will a secret, so that her husband would not know it, it is strange she executed it in the
presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the
absence of a showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several times; (c) it is
improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez
and Socorro Olarte to read her will, when she precisely wanted its contents to remain a
secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will
from her husband she would carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard
to believe that he returned it without destroying the will, the theory of the petitioner being
precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence
that Felicidad did not and could not have executed such holographic will.

In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor
and of his witnesses in a vigorous effort to discredit them. It appears that the same
arguments, or most of them, were presented in the motion to reconsider; but they failed to
induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly
answers the criticisms. We deem it unnecessary to go over the same matters, because in
our opinion the case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with other forms.
The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form,
thereby repealing the other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person
may execute a holographic will which must be entirely written, dated, and signed by the
hand of the testator himself. It is subject to no other form and may be made in or out of the
Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act
190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator
and three credible witnesses in each and every page; such witnesses to attest to the number
of sheets used and to the fact that the testator signed in their presence and that they signed
in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and
fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs.
Abangan, 40 Phil., 476) and to avoid that those who have no right to succeed the testator
would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 off.
Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of the
instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.).
Authenticity and due execution is the dominant requirement to be fulfilled when such will is
submitted to the courts for allowance. For that purpose the testimony of one of the
subscribing witnesses would be sufficient, if there is no opposition (Sec. 5, Rule 77). If there
is, the three must testify, if available. (Cabang vs. Delfinado 34 Phil., 291; Tolentino vs.
Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional
witnesses) the court may form its opinion as to the genuineness and authenticity of the
testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are
demanded, since as stated, they need no witnesses; provided however, that they are
"entirely written, dated, and signed by the hand of the testator himself." The law, it is
reasonable to suppose, regards the document itself as material proof of authenticity, and as
its own safeguard, since it could at any time, be demonstrated to be or not to be in the
hands of the testator himself. "In the probate of a holographic will" says the New Civil Code,
"it shall be necessary that at least one witness who knows the handwriting and signature of
the testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem
it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will.
They may be mistaken in their opinion of the handwriting, or they may deliberately lie in
affirming it is in the testator's hand. However, the oppositor may present other witnesses
who also know the testator's handwriting, or some expert witnesses, who after comparing

the will with other writings or letters of the deceased, have come to the conclusion that such
will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in
view of such contradictory testimony may use its own visual sense, and decide in the face of
the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing
the evidence are not available. And then the only guaranty of authenticity 3 the testator's
handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the
testimony of witnesses who have allegedly seen it and who declare that it was in the
handwriting of the testator? How can the oppositor prove that such document was not in the
testator's handwriting? His witnesses who know testator's handwriting have not examined it.
His experts can not testify, because there is no way to compare the alleged testament with
other documents admittedly, or proven to be, in the testator's hand. The oppositor will,
therefore, be caught between the upper millstone of his lack of knowledge of the will or the
form thereof, and the nether millstone of his inability to prove its falsity. Again the
proponent's witnesses may be honest and truthful; but they may have been shown a faked
document, and having no interest to check the authenticity thereof have taken no pains to
examine and compare. Or they may be perjurers boldly testifying, in the knowledge that
none could convict them of perjury, because no one could prove that they have not "been
shown" a document which they believed was in the handwriting of the deceased. Of course,
the competency of such perjured witnesses to testify as to the handwriting could be tested
by exhibiting to them other writings sufficiently similar to those written by the deceased; but
what witness or lawyer would not foresee such a move and prepare for it? His knowledge of
the handwriting established, the witness (or witnesses) could simply stick to his statement:
he has seen and read a document which he believed was in the deceased's handwriting. And
the court and the oppositor would practically be at the mercy of such witness (or witnesses)
not only as to the execution, but also as to the contents of the will. Does the law permit such
a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or
destroyed will by secondary evidence the testimony of witnesses, in lieu of the original
document. Yet such Rules could not have contemplated holographic wills which could not
then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.).
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is
that it may be lost or stolen 4 an implied admission that such loss or theft renders it
useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the
judge, (Art. 689) who shall subscribe it and require its identity to be established by the three
witnesses who depose that they have no reasonable doubt that the will was written by the
testator (Art. 691). And if the judge considers that the identity of the will has been proven he
shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving spouse and
the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is
universally admitted that the holographic will is usually done by the testator and by himself
alone, to prevent others from knowing either its execution or its contents, the above article
692 could not have the idea of simply permitting such relatives to state whether they know

of the will, but whether in the face of the document itself they think the testator wrote it.
Obviously, this they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either
complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5
Such purpose is frustrated when the document is not presented for their examination. If it be
argued that such choice is not essential, because anyway the relatives may oppose, the
answer is that their opposition will be at a distinct disadvantage, and they have the right and
privilege to comply with the will, if genuine, a right which they should not be denied by
withholding inspection thereof from them.
We find confirmation of these ideas about exhibition of the document itself in the
decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or
probate to a document containing testamentary dispositions in the handwriting of the
deceased, but apparently mutilated, the signature and some words having been torn from it.
Even in the face of allegations and testimonial evidence (which was controverted), ascribing
the mutilation to the opponents of the will. The aforesaid tribunal declared that, in
accordance with the provision of the Civil Code (Spanish) the will itself, whole and
unmutilated, must be presented; otherwise, it shall produce no effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo
688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta
evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o
menos cumplida de que cuando se otorgaron se llenaron todos esos requisitos, sino que de
la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se
desprende la necesidad de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para su adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la
causa de la falta de firma, y sin perjuicio de las acciones que puedan ejercitar los
perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la
hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . ."
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the
basis of the Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los
herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la tierra,
o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de
la manda, sea confirmada la manda. E depues que todo esto fuere conocido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala
la manda." (Art. 689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the
testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in
accordance with his holographic will, unless they are shown his handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of the
holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz,
1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and
the contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this
opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however,
to make this Rule decisive of this controversy, simultaneously with its promulgation.
Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the
evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike
holographic wills, ordinary wills may be proved by testimonial evidence when lost or
destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of
authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails the
loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are
available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the
notary) deliberately to lie. And then their lies could be checked and exposed, their
whereabouts and acts on the particular day, the likelihood that they would be called by the
testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of
the testator they are not likely to lend themselves to any fraudulent scheme to distort his
wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man
could engineer the whole fraud this way: after making a clever or passable imitation of the
handwriting and signature of the deceased, he may contrive to let three honest and credible
witnesses see and read the forgery; and the latter, having no interest, could easily fall for it,
and in court they would in all good faith affirm its genuineness and authenticity. The will
having been lost the forger may have purposely destroyed it in an "accident" the
oppositors have no way to expose the trick and the error, because the document itself is not
at hand. And considering that the holographic will may consist of two or three pages, and
only one of them need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature
feasibility of forgery would be added to the several objections to this kind of wills listed by
Castan, Sanchez Roman and Valverde and other well-known Spanish Commentators and
teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses
would be testifying to a fact which they saw, namely the act of the testator of subscribing
the will; whereas in the case of a lost holographic will, the witnesses would testify as to their
opinion of the handwriting which they allegedly saw, an opinion which can not be tested in
court, nor directly contradicted by the oppositors, because the handwriting itself is not at
hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial
judge's disbelief. In addition to the dubious circumstances described in the appealed

decision, we find it hard to believe that the deceased should show her will precisely to
relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could
pester her into amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal
the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do
so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged
execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic
will, we think the evidence submitted by herein petitioner is so tainted with improbabilities
and inconsistencies that it fails to measure up to that "clear and distinct" proof required by
Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L.,
Endencia and Felix, JJ., concur.

Rodelas vs. Aranza

G.R. No. L-58509
Justice Relova
DOCTRINE
Art. 811. In the probate of a holographic will, it shall be necessary that at
least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding
paragraph, and if the court deem it necessary, expert testimony may be
resorted to.
SPECIFIC ISSUE
Whether or not a holographic will which was lost or cannot be found can be
proved by means of a photostatic copy (Xerox copy)?
HOW DID THE SC DECIDE ON THE ISSUE BASED ON THE DOCTRINE
Yes, 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
and using the provision of Art. 881, 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. As indicated
in the Footnote 8 in the case of Gam vs. Yap, 104 PHIL, 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.
Gago v. Mamuyac
Johnson, J. (1927)
Nature: action to probate the last will and testament of Miguel Mamuyac
Facts:

07/27/1918: Miguel Mamuyac executed a last will and testament

01/1922: Mamuyac died. Francisco Gago petitioned for the probation of

Mamuyacs will opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon and Catalina Mamuyac

CFI denied the petition for probation on the ground that the deceased
executed a new will and testament on April 1919

02/1925: action to secure the probation of the April 1919 will Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon and Catalina Mamuyac
opposed:

Said will is a copy of the 2nd will and testament executed by Miguel
Mamuyac

cancelled and revoked during the lifetime of Miguel

not the last will and testament of Miguel

CFI denied the probation on the ground that it had been cancelled and
revoked in 1920
o

Witnessed by Fenoy who typed the will and Bejar who saw it actually
cancelled by Miguel (because Miguel sold to Bejar a house and the land
where the house was built, he had to cancel the 1919 will)

Issue: WON the will in question had been cancelled in 1920?

Ruling: Yes

Lower court accepted positive proof of the cancellation that was not denied.

The law does not require any evidence of the revocation or cancellation of a
will to be preserved. It therefore becomes difficult to prove the revocation.

Cancellation or revocation must either remain unproved or be inferred from

evidence showing that after due search, the original will cannot be found

Where a will which cannot be found is shown to have been in the possession
of the testator, when last seen, the presumption is, in the absence of other
competent evidence, that the same was cancelled or destroyed

Same presumption 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 presumption of cancellation is never conclusive but may be overcome by

proof that the will was not destroyed by the testator with intent to revoke it.

Since the original will of 1919 could not be found after the death of the
testator and in view of the positive proof that it had been cancelled, the
conclusion is that it had been cancelled and revoked

In a proceeding to probate a will, the burden of proof is upon the proponent to

establish its execution and existence.

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
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.

The Incompetent Carmen Caniza v. Court of Appeals, Pedro and Leonora

Estrada
G.R. No. 110427; February 24, 1997

Facts:
Carmen Caniza (94), a spinster, a retired pharmacist, and former professor of the
College of Chemistry and Pharmacy of the University of the Philippines, was
declared incompetent by judgment of the QC RTC in a guardianship proceeding
instituted by her niece, Amparo A. Evangelista. She was so adjudged because of her
advanced age and physical infirmities which included cataracts in both eyes and
senile dementia. Amparo A. Evangelista was appointed legal guardian of her person
and estate.
Caiza was the owner of a house and lot. Her guardian Amparo commenced a suit
to eject the spouses Estrada from the said premises in the MTC of Quezon City.
Complaint pertinently alleged that plaintiff Caiza was the absolute owner of the
property in question, covered by TCT No. 27147; that out of kindness, she had
allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free; that Caiza already had urgent need of
the house on account of her advanced age and failing health, "so funds could be
raised to meet her expenses for support, maintenance and medical treatment;" that
through her guardian, Caiza had asked the Estradas verbally and in writing to
vacate the house but they had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in question, they **
(were) enriching themselves at the expense of the incompetent, because, while
they ** (were) saving money by not paying any rent for the house, the incompetent
** (was) losing much money as her house could not be rented by others." Also
alleged was that the complaint was "filed within one (1) year from the date of first
letter of demand dated February 3, 1990."
In their Answer, the defendants declared that they had been living in Caiza's house
since the 1960's; that in consideration of their faithful service they had been
considered by Caiza as her own family, and the latter had in fact executed a
holographic will by which she "bequeathed".
Judgement was rendered by the MetroTC in favor of Caiza but it was reversed on
appeal by the Quezon City RTC.
Caiza sought to have the Court of Appeals reverse the decision but failed in that
attempt.
It ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the
RTC, not an accion interdictal in the MetroTC, since the "defendants have not been
in the subject premises as mere tenants or occupants by tolerance, they have been
there as a sort of adopted family of Carmen Caiza," as evidenced by what purports
to be the holographic will of the plaintiff; and (b) while "said will, unless and until it
has passed probate by the proper court, could not be the basis of defendants' claim
to the property, ** it is indicative of intent and desire on the part of Carmen Caiza
that defendants are to remain and are to continue in their occupancy and
possession, so much so that Caiza's supervening incompetency cannot be said to
have vested in her guardian the right or authority to drive the defendants out. They
conclude, on those postulates, that it is beyond the power of Caiza's legal guardian
to oust them from the disputed premises.

Carmen Caiza died, and her heirs -- the aforementioned guardian, Amparo
Evangelista, and Ramon C. Nevado, her niece and nephew, respectively -- were by
this Court's leave, substituted for her.
Issue:
1. Whether or not Evangelista, as Caiza's legal guardian had authority to bring
said action; and
2. Whether or not Evangelista may continue to represent Caiza after the latter's
death.

Ruling:
1. The Estradas insist that the devise of the house to them by Caiza clearly
denotes her intention that they remain in possession thereof, and legally
incapacitated her judicial guardian, Amparo Evangelista, from evicting them
therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be
changed or revoked; and until admitted to probate, it has no effect whatever and no
right can be claimed thereunder, the law being quite explicit: "No will shall pass
either real or personal property unless it is proved and allowed in accordance with
the Rules of Court" (ART. 838,id.).
An owner's intention to confer title in the future to persons possessing property by
his tolerance, is not inconsistent with the former's taking back possession in the
meantime for any reason deemed sufficient. And that in this case there was
sufficient cause for the owner's resumption of possession is apparent: she needed
to generate income from the house on account of the physical infirmities afflicting
her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of
both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship clearly installed her as the "guardian over the person and properties
of the incompetent CARMEN CANIZA with full authority to take possession of the
property of said incompetent in any province or provinces in which it may be
situated and to perform all other acts necessary for the management of her
properties.".
By that appointment, it became Evangelista's duty to care for her aunt's person, to
attend to her physical and spiritual needs, to assure her well-being, with right to
custody of her person in preference to relatives and friends. It also became her right
and duty to get possession of, and exercise control over, Caiza's property, both
real and personal, it being recognized principle that the ward has no right to
possession or control of his property during her incompetency. That right to manage
the ward's estate carries with it the right to take possession thereof and recover it

from anyone who retains it, and bring and defend such actions as may be needful
for this purpose.

2. As already stated, Carmen Caiza passed away during the pendency of this
appeal. The Estradas thereupon moved to dismiss the petition, arguing that
Caiza's death automatically terminated the guardianship, Amaparo Evangelista
lost all authority as her judicial guardian, and ceased to have legal personality to
represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is
necessarily terminated by the death of either the guardian or the ward, the rule
affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen
Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's
nephew, Ramon C. Nevado. On their motion and by Resolution of this Court, they
were in fact substituted as parties in the appeal at bar in place of the deceased.
"SEC. 18.
Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of
the deceased to appear and be substituted for the deceased within a period of
thirty (30) days, or within such time as may be granted. If the legal representative
fails to appear within said time, the court may order the opposing party to procure
the appointment of a legal representative of the deceased within a time to be
specified by the court, and the representative shall immediately appear for and on
behalf of the interest of the deceased. The court charges involved in procuring such
appointment, if defrayed by the opposing party, may be recovered as costs. The
heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may
appoint guardian ad litem for the minor heirs.