G.R.

No.

L-26615.

April

30,

1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila,
Branch
and
CONSUELO
GONZALES
VDA.
DE
PRECILLA,Respondents.
[G.R.

No.

L-26884.

April

30,

SYLLABUS

1. CIVIL LAW; SUCCESSION, WILLS; PROBATE OF WILLS; GROUND FOR

DISALLOWANCE; TESTATRIXS DEFECTIVE EYESIGHT AS UNABLING HER TO
READ THE PROVISIONS OF LATER WILL. The declarations in court of the
opthalmologist as to the condition of the testatrixs eyesight fully establish
the fact that her vision remained mainly for viewing distant objects and not
for reading print; that she was, at the time of the execution of the second
will on December 29, 1960, incapable of reading and could not have read
the
provisions
of
the
will
supposedly
signed
by
her.

1970.]

REV. FATHER LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of
Manila, Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO
GONZALES
VDA.
DE
PRECILLA, Respondents.
[G.R.

No.

L-27200.

April

30,

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL;
CASE AT BAR. Upon its face, the testamentary provisions, the attestation
clause and acknowledgment were crammed together into a single sheet of
paper, apparently to save on space. Plainly, the testament was not
prepared with any regard for the defective vision of Da. Gliceria, the
typographical errors remained uncorrected thereby indicating that the
execution thereof must have been characterized by haste. It is difficult to
understand that so important a document containing the final disposition
of ones worldly possessions should be embodied in an informal and untidy
written instrument; or that the glaring spelling errors should have escaped
her notice if she had actually retained the ability to read the purported will
and
had
done
so.

1970.]

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased

CONSUELO
S.
GONZALES
VDA.
DE
PRECILLA,
petitioner
administratrix, v. SEVERINA NARCISO, ROSA NARCISO, JOSEFINA
NARCISO, VICENTE MAURICIO, DELFIN MAURICIO, REMEDIOS
NARCISO, ENCARNACION, NARCISO, MARIA NARCISO, EDUARDO
NARCISO, FR. LUCIO V. GARCIA, ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD DE JESUS, DR. JAIME DEL ROSARIO, ET AL., NATIVIDAD
DEL
ROSARIO-SARMIENTO
and
PASCUALA
NARCISOMANAHAN, Oppositors-Appellants.

3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART. 808,
NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND TESTATOR;
PURPOSE. The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself is to make the
provisions thereof known to him, so that he may be able to object if they
are
not
in
accordance
with
his
wishes.

Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.

Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr.
for respondent Consuelo S. Gonzales Vda. de Precilla.

4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE. Where
as in the 1960 will there is nothing in the record to show that the requisites
of Art. 808 of the Civil Code of the Philippines that "if the testator is blind,
the will shall be read to him twice," have not been complied with, the said
1960 will suffer from infirmity that affects its due execution.

Lorenzo C. Gella for respondent Register of Deeds of Manila.

Leandro Sevilla & Ramon C. Aquino for petitioner administratrix.
Castro, Makalintal
Encarnacion

&

Associates
Narciso,

for

oppositors-appellants
Et.
Al.

5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;

ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF INTEREST
ADVERSE TO THAT OF THE ESTATE MAKES THE ADMINISTRATOR
UNSUITABLE TO DISCHARGE THE TRUST; CASE AT BAR. Considering that
the alleged deed of sale was executed when Gliceria del Rosario was
already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case
for annulment might be filed against the estate or heirs of Alfonso Precilla.
And the administratrix being the widow and heir of the alleged transferee,
cannot be expected to sue herself in an action to recover property that

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia
and
Antonio
Jesus
de
Praga.
Salonga, Ordoez, Yap, Sicat
appellants
Severina

&

Associates
Narciso,

for oppositorsEt.
Al.

George G. Arbolario and Sixto R. Reyes & Vicente Redor for

oppositors-appellants Natividad del Rosario Sarmiento, Et. Al.

may turn out to belong to the estate. This, plus her conduct in securing
new copies of the owners duplicate of titles without the courts knowledge
and authority and having the contract bind the land through issuance of
new titles in her husbands name, cannot but expose her to the charge of
unfitness or unsuitability to discharge the trust, justifying her removal from
the
administration
of
the
estate.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of

the deceased, petitioned the Court of First Instance of Manila for probate of
the alleged last will and testament of Gliceria A. del Rosario, executed on
29 December 1960, and for her appointment as special administratrix of
the latters estate, said to be valued at about P100,000.00, pending the
appointment
of
a
regular
administrator
thereof.

6. REMEDIAL LAW; NOTICE OF LIS PENDENS; ACTION MUST AFFECT "THE

TITLE OR THE RIGHT OF POSSESSION OF REAL PROPERTY." On the
matter of lis pendens, the provisions of the Rules of Court are clear: notice
of the pendency of an action may be recorded in the office of the register
of deeds of the province in which the property is situated, if the action
affects "the title or the right of possession of (such) real property."cralaw
virtua1aw
library

The petition was opposed separately by several groups of alleged heirs: (1)
Rev. Fr. Lucio V. Garcia, a legatee named in an earlier will executed by
Gliceria A. del Rosario on 9 June 1956; (2) Jaime Rosario and children,
relatives and legatees in both the 1956 and 1960 wills; Antonio Jesus de
Praga and Marta Natividad de Jesus, wards of the deceased and legatees in
the 1956 and 1960 wills; (3) Remedios, Encarnacion, and Eduardo, all
surnamed Narciso; (4) Natividad del Rosario-Sarmiento; (5) Maria Narciso;
(6) Pascuala Narciso de Manahan; (7) Severina, Rosa and Josefa, surnamed
Narciso, and Vicente and Delfin, surnamed Mauricio, the latter five
groups of persons all claiming to be relatives of Doa Gliceria within the
fifth civil degree. The oppositions invariably charged that the instrument
executed in 1960 was not intended by the deceased to be her true will;
that the signatures of the deceased appearing in the will was procured
through undue and improper pressure and influence the part of the
beneficiaries and/or other persons; that the testatrix did not know the
object of her bounty; that the instrument itself reveals irregularities in its
execution, and that the formalities required by law for such execution have
not
been
complied
with.

7. ID.; ID.; ID.; NOT APPLICABLE TO INSTANT CASE. The issue in

controversy here is simply the fitness or unfitness of said special
administratrix to continue holding the trust, it does not involve or affect at
all the title to, or possession of, the properties covered by TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an
action that can properly be annotated in the record of the titles to the
properties.

DECISION

Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of
the deceased, joined the group of Dr. Jaime Rosario in registering
opposition to the appointment of petitioner Consuelo S. Gonzales Vda. de
Precilla as special administratrix, on the ground that the latter possesses
interest adverse to the estate. After the parties were duly heard, the
probate court, in its order of 2 October 1965, granted petitioners prayer
and appointed her special administratrix of the estate upon a bond for
P30,000.00. The order was premised on the fact the petitioner was
managing the properties belonging to the estate even during the lifetime
of the deceased, and to appoint another person as administrator or co
administrator at that stage of the proceeding would only result in further
confusion
and
difficulties.

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

G.R. No. L-27200 is an appeal from the order of the Court of First Instance
of Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will
an, testament of the late Gliceria Avelino del Rosario dated 29 December
1960. G.R. Nos. L-26615 and L-2684 are separate petitions for mandamus
filed by certain alleged heirs of said decedent seeking (1) to compel the
probate court to remove Consuelo S. Gonzales-Precilla as special
administratrix of the estate, for conflict of interest, to appoint a new one in
her stead; and (2) to order the Register of Deeds of Manila to annotate
notice of lis pendens in TCT Nos. 81735, 81736 ,and 81737, registered in
the name of Alfonso Precilla, married to Consuelo Gonzales y Narciso, and
said to be properly belonging to the estate of the deceased Gliceria A. del
Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases
may
be
stated
as
follows:chanrob1es
virtual
1aw
library

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the
probate court an urgent motion to require the Hongkong & Shanghai Bank
to report all withdrawals made against the funds of the deceased after 2
September 1965. The court denied this motion on 22 October 1965 for
being premature, it being unaware that such deposit in the name of the
deceased
existed.
1

Gliceria Avelino del Rosario died unmarried in the City of Manila on 2

September 1965, leaving no descendents, ascendants, brother or sister. At
the time of her death, she was said to be 90 years old more or less, and
possessed of an estate consisting mostly of real properties.

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special
administratrix. It was their claim that the special administratrix and her

deceased husband, Alfonso Precilla, 2 had caused Gliceria A. del Rosario to

execute a simulated and fraudulent deed of absolute sale dated 10 January
1961 allegedly conveying unto said spouses for the paltry sum of
P30,000.00 ownership of 3 parcels of land and the improvements thereon
located on Quiapo and San Nicolas, Manila, with a total assessed value of
P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it
may become necessary that, an action for the annulment of the deed of
sale land for recovery of the aforementioned parcels of land be filed
against the special administratrix, as wife and heir of Alfonso Precilla, the
removal
of
the
said
administratrix
was
imperative.

Then, on 13 September 1966, the probate court resolved the oppositors

motion of 14 December 1965 for the removal of the then special
administratrix,
as
follows:jgc:chanrobles.com.ph
"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an
action may be filed against the special administratrix for the annulment of
the deed of sale executed by the decedent on January 10, 1961. Under
existing documents, the properties sold pursuant to the said deed of
absolute sale no longer forms part of the estate. The alleged conflict of
interest is accordingly not between different claimants of the same estate.
If it is desired by the movants that an action be filed by them to annul the
aforesaid deed absolute sale, it is not necessary that the special
administratrix be removed and that another one be appointed to file such
action. Such a course of action would only produce confusion and
difficulties in the settlement of the estate. The movants may file the
aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"

On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22
October 1965, or after her appointment, petitioner Consuelo Gonzales Vda.
de Precilla, in her capacity as special administratrix of the estate of the
deceased Gliceria A. del Rosario, filed with Branch IV of the Court of First
Instance of Manila a motion for the issuance of new copies of the owners
duplicates of certain certificates of title in the name of Gliceria del Rosario,
supposedly needed by her "in the preparation of the inventory" of the
properties constituting the estate. The motion having been granted, new
copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204)
were issued on 15 November 1965. On 8 December 1965, according to the
oppositors, the same special administratrix presented to the Register of
Deeds the deed of sale involving properties covered by TCT Nos. 66201,
66202 and 66204 supposedly executed by Gliceria del Rosario on 10
January 1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos. 81735, 81736
and 81737) were issued in the name of Alfonso Precilla, married to
Consuelo
S.
Gonzales
y
Narciso.

As regard the motion of 17 December 1965 asking for the deposit in court
of the titles in the name of the decedent, the same was also denied, for the
reason that if the movants were referring to the old titles, they could no
longer be produced, and if they meant the new duplicate copies thereof
that were issued at the instance of the special administratrix, there would
be no necessity therefor, because they were already cancelled and other
certificates were issued in the name of Alfonso Precilla. This order
precipitated the oppositors filing in this Court of a petition for mandamus
(G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, Et. Al. v. Hon. Judge Conrado M.
Vasquez, Et. Al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court,
the oppositors requested the Register of Deeds of Manila to annotate a
notice of lis pendens in the records of TCT Nos. 81735, 81736, and 81737
in the name of Alfonso Precilla. And when said official refused to do so,
they applied to the probate court (in Sp. Proc. No. 62618) for an order to
compel the Register of Deeds to annotate a lis pendens notice in the
aforementioned titles contending that the matter of removal and
appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion
on 12 November 1966, oppositors filed another mandamus action, this
time against the probate court and the Register of Deeds. The case was
docketed and given due course in this Court as G.R. No. L-26864.

On 25 August 1966, the Court issued an order admitting to probate the

1960 will of Gliceria A. del Rosario (Exhibit "D"). In declaring the due
execution of the will, the probate court took note that no evidence had
been presented to establish that the testatrix was not of sound mind when
the will was executed; that the fact that she had prepared an earlier will
did not, prevent her from executing another one thereafter; that the fact
that the 1956 will consisted of 12 pages whereas the 1960 testament was
contained in one page does not render the latter invalid; that, the erasures
and alterations in the instrument were insignificant to warrant rejection;
that the inconsistencies in the testimonies of the instrumental witnesses
which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had
already shown capacity to administer the properties of the estate and that
from the provisions of the will she stands as the person most concerned
and interested therein, appointed said petitioner regular administratrix
with a bond for P50,000.00. From this order all the oppositors appealed,
the case being docketed in this Court as G.R. No. L-27200.

Foremost of the questions to be determined here concerns the correctness

of
the
order
allowing
the
probate
of
the
1960
will.
The records of the probate proceeding fully establish the fact that the
testatrix, Gliceria A. del Rosario, during her lifetime, executed two wills:
one on 9 June 1956 consisting of 12 pages and written in Spanish, a
language that she knew and spoke, witnessed by Messrs. Antonio Cabrera,
Jesus Y. Ayala and Valentin Marquez, and acknowledged before notary

public Jose Ayala; and another dated 29 December 1960, consisting of 1

page and written in Tagalog, witnessed by Messrs. Vicente Rosales,
Francisco Decena, and Francisco Lopez and acknowledged before notary
public
Remigio
M.
Tividad.

admitted by both parties, testified, among other things, that when Doa
Gliceria del Rosario saw him for consultation on 11 March 1960 he found
her left eye to have cataract (opaque lens), 15 and that it was "above
normal in pressure", denoting a possible glaucoma, a disease that leads to
blindness 16 As to the conditions of her right eye, Dr. Tamesis
declared:jgc:chanrobles.com.ph

Called to testify on the due execution of the 1960 will, instrumental

witnesses Decena, Lopez and Rosales uniformly declared that they were
individually requested by Alfonso Precilla (the late husband of petitioner
special administratrix) to witness the execution of the last will of Doa
Gliceria A. del Rosario; that they arrived at the house of the old lady at No.
2074 Azcarraga, Manila, one after the other, in the afternoon of 29
December 1960; that the testatrix at the time was apparently of clear and
sound mind, although she was being aided by Precilla when she walked; 3
that the will, which was already prepared, was first read "silently" by the
testatrix herself before she signed it; 4 that he three witnesses thereafter
signed the will in the presence of the testatrix and the notary public and of
one another. There is also testimony that after the testatrix and the
witnesses to the will acknowledged the instrument to be their voluntary act
and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together;
5 that after comparing them with the numbers already written on the will,
the notary public filled in the blanks in the instrument with the date, 29
January 1960, before he affixed his signature and seal thereto. 6 They also
testified that on that occasion no pressure or influence has been exerted
by
any
person
upon
the
testatrix
to
execute
the
will.

"Q But is there anything here in the entry appearing in the other
documents Exhibits 3-B, 3-C and 3-D from which you could inform the court
as to the condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting
of glass by myself which showed that the right eye with my prescription of
glasses had a vision of 2 over 60 (20/60) and for the left eye with her
correction
20
over
300
(20/300).
"Q In laymans language, Doctor, what is the significance of that notation
that
the
right
had
a
degree
of
20
over
60
(20/60)?
"A It meant that eye at least would be able to recognize objects or persons
at
a
minimum
distance
of
twenty
feet.
"Q

But

would

that

grade

enable

the

patient

to

read

print?

"A Apparently that is only a record for distance vision, for distance sight,
not
for
near."cralaw
virtua1aw
library

Of course, the interest and active participation of Alfonso Precilla in the

signing of this 1960 will are evident from the records. The will appeared to
have been prepared by one who is not conversant with the spelling of
Tagalog words, and it has been shown that Alfonso Precilla is a Cebuano
who speaks Tagalog with a Visayan accent. 7 The witnesses to the will, two
of whom are fellow Visayans, 8 admitted their relationship or closeness to
Precilla. 9 It was Precilla who instructed them to go to the house of Gliceria
del Rosario on 29 December 1960 to witness an important document, 10
and who took their residence certificates from them a few days before the
will was signed. 11 Precilla had met the notary public and witnesses
Rosales and Lopez at the door of the residence of the old woman; he
ushered them to the room at the second floor where the signing of the
document took place; 12 then he fetched witness Decena from the latters
haberdashery shop a few doors away and brought him to, the house the
testatrix. 13 And when the will was actually executed Precilla was present.
14

(pages

20-21,

t.s.n.,

hearing

of

23

March

1966)

The records also show that although Dr. Tamesis operated of the left eye of
the decedent at the Lourdes Hospital on 8 August 1960; as of 23 August
1960, inspite of the glasses her vision was only "counting fingers," 17 at
five feet. The cross-examination of the doctor further elicited the following
responses:jgc:chanrobles.com.ph
"Q After she was discharged from the hospital you prescribed lenses for
her,
or
glasses?
"A After her discharge from the hospital, she was coming to my clinic for
further examination and then sometime later glasses were prescribed.
x

The oppositors-appellants in the present case, however, challenging the

correctness of the probate courts ruling, maintain that on 29 December
1960 the eyesight of Gliceria del Rosario was so poor and defective that
she could not have read the provisions of the will, contrary to the
testimonies
of
witnesses
Decena,
Lopez
and
Rosales.

"Q And the glasses prescribed by you enabled her to read, Doctor?
"A As far as my record is concerned, with the glasses for the left eye which
I prescribed the eye which I operated she could see only forms but
not
read.
That
is
on
the
left
eye.

On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was

"Q

How

about

the

right

eye?

much so that the words had to be written very close on the top, bottom
and two sides of the paper, leaving no margin whatsoever; the word "and"
had to be written by the symbol" &", apparently to save on space. Plainly,
the testament was not prepared with any regard for the defective vision of
Doa Gliceria. Further, typographical errors like "HULINH" for "HULING"
(last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for MERCEDES", "instrumental"
for "Instrumental", and "acknowledged" for "acknowledge, remained
uncorrected, thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions
should be embodied in an informal and untidily written instrument; or that
the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so.
The record is thus convincing that the supposed testatrix could not have
physically read or understood the alleged testament, Exhibit "D", and that
its admission to probate was erroneous and should be reversed.

"A The same, although the vision on the right eye is even better than the
left eye." (pages 34. 85. t.s.n., hearing of 23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29
November 1965 certifying that Gliceria del Rosario was provided with
aphakic lenses and "had been under medical supervision up to 1963 with
apparently good vision", the doctor had this to say:jgc:chanrobles.com.ph
"Q When yon said that she had apparently good vision you mean that she
was
able
to
read?
"A No, not necessarily, only able to go around, take care of herself and see.
This I can tell you, this report was made on pure recollections and I recall
she was using her glasses although I recall also that we have to give her
medicines to improve her vision, some medicines to improve her
identification some more.
x

That Doa Gliceria should be able to greet her guests on her birthday,
arrange flowers and attend to kitchen tasks shortly prior to the alleged
execution of the testament Exhibit "D", as appears from the photographs,
Exhibits "E" to "E-1", in no way proves; that she was able to read a closely
typed page, since the acts shown do not require vision at close range. It
must be remembered that with the natural lenses removed, her eyes had
lost the power of adjustment to near vision, the substituted glass lenses
being rigid and uncontrollable by her. Neither is the signing of checks
(Exhibits "G" to "G-3") by her indicative of ability to see at normal reading
distances. Writing or signing of ones name, when sufficiently practiced,
becomes automatic, so that one need only to have a rough indication of
the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph,
Exhibit "O", et seq., reinforces the contention of oppositors that the alleged
testatrix could not see at normal reading distance: the signatures in the
checks are written far above the printed base, lines, and the names of the
payees as well as the amounts written do not appear to be in the
handwriting of the alleged testatrix, being in a much firmer and more fluid
hand
than
hers.

"Q What about the vision in the right eve, was that corrected by the
glasses?
"A Yes, with the new prescription which I issued on 80 August 1960. It is in
the
clinical
record.
"Q

The

vision

in

the

right

eye

was

corrected?

"A Yes That is the vision for distant objects."cralaw virtua1aw library
(pages

38,

39,

40.

t.s.n.,

hearing

of

23

March

1966).

The foregoing testimony of the ophthalmologist who treated the deceased

and, therefore, has first hand knowledge of the actual condition of her
eyesight from August, 1960 up to 1963, fully establish the fact that
notwithstanding the operation and removal of the cataract in her left eye
and her being fitted with aphakic lens (used by cataract patients), her
vision remained mainly for viewing distant objects and not for reading
print. Thus, the conclusion is inescapable that with the condition of her
eyesight in August, 1960, and there is no evidence that it had improved by
29 December 1960, Gliceria del Rosario was incapable f reading, and could
not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated
that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion
and
not
a
fact.

Thus, for all intents and purpose of the rules on probate, the deceased
Gliceria del Rosario was, as appellant oppositors contend, not unlike a blind
testator, and the due execution of her will would have required observance
of
the
provisions
of
Article
808
of
the
Civil
Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once,
by one of the subscribing witnesses, and again, by the notary public before
whom
the
will
is
acknowledged."cralaw
virtua1aw
library
The rationale behind the requirement of reading the will to the testator if
he is blind or incapable of reading the will himself (as when he is illiterate),
18 is to make the provisions thereof known to him, so that he may be able
to object if they are not in accordance with his wishes. That the aim of the
law is to insure that the dispositions of the will are properly communicated

Against the background of defective eyesight of the alleged testatrix, the

appearance of the will, Exhibit "D", acquires striking significance. Upon its
face, the testamentary provisions, the attestation clause and
acknowledgment were crammed together into a single sheet of paper, to

to and understood by the handicapped testator, thus making them truly

reflective of his desire, is evidenced by the requirement that the will should
be read to the latter, not only once but twice, by two different persons, and
that the witnesses have to act within the range of his (the testators) other
senses.
19

administratrix, being the widow and heir of the alleged transferee, cannot
be expected to sue herself in an action to recover property that may turn
out to belong to the estate. 22 Not only this, but the conduct of the special
administratrix in securing new copies of the owners duplicates of TCT Nos.
66201, 66202, and 66204, without the courts knowledge or authority, and
on the pretext that she needed them in the preparation of the inventory of
the estate, when she must have already known by then that the properties
covered therein were already "conveyed" to her husband by the deceased,
being the latters successor, and having the contract bind the land through
issuance of new titles in her husbands name cannot but expose her to the
charge of unfitness or unsuitableness to discharge the trust, justifying her
removal
from
the
administration
of
the
estate.

In connection with the will here in question, there is nothing in the records
to show that the above requisites have been complied with. Clearly, as
already stated, the 1960 will sought to be probated suffers from infirmity
that
affects
its
due
execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al.,
against the denial by the probate court of their petition for the removal of
Consuelo Gonzales Vda. de Precilla as special administratrix of the estate
of the deceased Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").

With respect to the orders of the court a quo denying (1) the oppositors
motion to require the Hongkong and Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September
1965 and (2) the motion for annotation of a lis pendens notice on TCT Nos.
81735, 81736 and 81737, the same are to be affirmed.

The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their
contention that through fraud her husband had caused the deceased
Gliceria del Rosario to execute a deed of sale, dated 10 January 1961, by
virtue of which the latter purportedly conveyed unto said Alfonso D.
Precilla, married to Consuelo Gonzales y Narciso, the ownership of 3
parcels of land and the improvements thereon, assessed at P334,050.00,
for
the
sum
of
P30,000.00.

The probate court pointed out in its order of 22 October 1965 (Annex "H")
that it could not have taken action on the complaint against the alleged
withdrawals from the bank deposits of the deceased, because as of that
time the court had not yet been apprised that such deposits exist.
Furthermore, as explained by the special administratrix in her pleading of
30 October 1965, the withdrawals referred to by the oppositors could be
those covered by checks issued in the name of Gliceria del Rosario during
her lifetime but cleared only after her death. That explanation, which not
only appears plausible but has not been rebutted by the petitionersoppositors, negates any charge of grave abuse in connection with the
issuance
of
the
order
here
in
question.

In denying the petition, the probate court, in its order of 13 September

1966 (Annex "P", Petition) reasoned out that since the properties were
already sold no longer form part of the estate. The conflict of interest
would not be between the estate and third parties, but among the different
claimants of said properties, in which case, according to the court, the
participation of the special administratrix in the action for annulment that
may
be
brought
would
not
be
necessary.

On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules
of Court are clear: notice of the pendency of an action may be recorded in
the office of the register of deeds of the province in which the property is
situated, if the action affects "the title or the right of possession of (such)
real property." 23 In the case at bar, the pending action which oppositors
seek to annotate in the records of TCT Nos. 81735, 81736, and 81737 is
the mandamus proceeding filed in this Court (G.R. No. L-26615). As
previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the
motion for the removal of Consuelo Gonzales Vda. de Precilla as special
administratrix of the estate of the late Gliceria del Rosario. In short, the
issue in controversy there is simply the fitness or unfitness of said special
administratrix to continue holding the trust; it does not involve or affect at
all the title to, or possession of, the properties covered by said TCT Nos.
81735, 81736 and 81737. Clearly, the pendency of such case (L-26615) is
not an action that can properly be annotated in the record of the titles to
the
properties.

The error in this line of reasoning lies in the fact that what was being
questioned was precisely the validity of the conveyance or sale of the
properties. In short, if proper, the action for annulment would have to be
undertaken on behalf of the estate by the special administratrix, affecting
as it does the property or rights of the deceased. 20 For the rule is that
only where there is no special proceeding for the settlement of the estate
of the deceased may the legal heirs commence an action arising out of a
right
belonging
to
their
ancestor.
21
There is no doubt that to settle the question of the due execution and
validity of the deed of sale, an ordinary and separate action would have to
be instituted, the matter not falling within the competence of the probate
court. 22 Considering the facts then before it, i.e., the alleged deed of sale
having been executed by Gliceria del Rosario on 10 January 1961, when
she was already practically blind; and that the consideration of P30,000.00
seems to be unconscionably small for properties with a total assessed
value of P334,050.00, there was likelihood that a case for annulment might
indeed be filed against the estate or heirs of Alfonso Precilla. And the

FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed

and set aside. The petition in G.R. No. L-26615 being meritorious, the
appealed order is set aside and the court below is ordered to remove the
administratrix, Consuelo Gonzales Vda. de Precilla, and appoint one of the
heirs intestate of the deceased Doa Gliceria Avelino del Rosario as special
administrator for the purpose of instituting action on behalf of her estate to
recover the properties allegedly sold by her to the late Alfonso D. Precilla.
And in Case G.R. No. L-26864, petition is dismissed. No costs.

Appeals, which affirmed the Order dated 27 June 1983 2 of the Regional
Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and
testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial
will entitled "Huling Habilin" wherein he disinherited an illegitimate son
(petitioner) and expressly revoked a previously executed holographic will
at the time awaiting probate before Branch 4 of the Regional Trial Court of
sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and
by private respondent who were present at the execution, the testator did
not read the final draft of the will himself. Instead, private respondent, as
the lawyer who drafted the eight-paged document, read the same aloud in
the presence of the testator, the three instrumental witnesses and the
notary public. The latter four followed the reading with their own respective
copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to
probate on 9 December 1977. On the 29th day of the same month, a
codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na
Nasasaad sa Huling Habilin na may Petsa Nobiembre 5, 1977 ni Brigido
Alvarado" was executed changing some dispositions in the notarial will to
generate cash for the testator's eye operation. Brigido was then suffering
from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not
personally read the final draft of the codicil. Instead, it was private
respondent who read it aloud in his presence and in the presence of the
three instrumental witnesses (same as those of the notarial will) and the
notary public who followed the reading using their own copies.

G.R. No. 74695 September 14, 1993

In the Matter of the Probate of the Last Will and Testament of the
Deceased
Brigido
Alvarado,
CESAR
ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO,
Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.

A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with
the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5Petitioner, in turn, filed an Opposition on the following grounds:
that the will sought to be probated was not executed and attested as
required by law; that the testator was insane or otherwise mentally
incapacitated to make a will at the time of its execution due to senility and
old age; that the will was executed under duress, or influence of fear and
threats; that it was procured by undue and improper pressure and
influence on the part of the beneficiary who stands to get the lion's share
of the testator's estate; and lastly, that the signature of the testator was
procured by fraud or trick.

Vicente R. Redor for petitioner.

Bayani Ma. Rino for and in his own behalf.

BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of

When the oppositor (petitioner) failed to substantiate the grounds relied

upon in the Opposition, a Probate Order was issued on 27 June 1983 from
which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at
the time his "Huling Habilin" and the codicil attached thereto was
executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and
codicil should have been denied.

the term as it is used in Art. 808. To support his stand, petitioner presented
before the trial court a medical certificate issued by Dr. Salvador R.
Salceda, Director of the Institute of Opthalmology (Philippine Eye Research
Institute), 6 the contents of which were interpreted in layman's terms by Dr.
Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr.
Roasa explained that although the testator could visualize fingers at three
(3) feet, he could no longer read either printed or handwritten matters as
of 14 December 1977, the day of his first consultation. 8

On 11 April 1986, the Court of Appeals rendered the decision under review
with the following findings: that Brigido Alvarado was not blind at the time
his last will and codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially complied with when both
documents were read aloud to the testator with each of the three
instrumental witnesses and the notary public following the reading with
their respective copies of the instruments. The appellate court then
concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator
the contents of the drafted will was served.

On the other hand, the Court of Appeals, contrary to the medical

testimony, held that the testator could still read on the day the will and the
codicil were executed but chose not to do so because of "poor
eyesight." 9 Since the testator was still capable of reading at that time, the
court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still
capable of reading at the time his will and codicil were prepared, the fact
remains and this was testified to by his witnesses, that Brigido did not do
so because of his "poor," 10 "defective," 11 or "blurred" 12 vision making it
necessary for private respondent to do the actual reading for him.

The issues now before us can be stated thus: Was Brigido Alvarado blind
for purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article
complied with?

The following pronouncement in Garcia vs. Vasquez 13 provides an insight

into the scope of the term "blindness" as used in Art. 808, to wit:

Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were
executed. However, his vision on both eyes was only of "counting fingers at
three (3) feet" by reason of the glaucoma which he had been suffering
from for several years and even prior to his first consultation with an eye
specialist
on
14 December 1977.

The rationale behind the requirement of reading the will to

the testator if he is blind or incapable of reading the will
himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if
they are not in accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators
but also to those who, for one reason or another, are "incapable of reading
the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution
due to his "poor," "defective," or "blurred" vision, there can be no other
course for us but to conclude that Brigido Alvarado comes within the scope
of the term "blind" as it is used in Art. 808. Unless the contents were read
to him, he had no way of ascertaining whether or not the lawyer who
drafted the will and codicil did so confortably with his instructions. Hence,
to consider his will as validly executed and entitled to probate, it is
essential that we ascertain whether Art. 808 had been complied with.

The point of dispute is whether the foregoing circumstances would qualify

Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and
again, by the notary public before whom the will is
acknowledged.
Petitioner contends that although his father was not totally blind when the
will and codicil were executed, he can be so considered within the scope of

Article 808 requires that in case of testators like Brigido Alvarado, the will
shall be read twice; once, by one of the instrumental witnesses and, again,
by the notary public before whom the will was acknowledged. The purpose
is to make known to the incapacitated testator the contents of the
document before signing and to give him an opportunity to object if
anything is contrary to his instructions.

Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's
physician) asked the testator whether the contents of the document were
of his own free will. Brigido answered in the affirmative. 16 With four
persons following the reading word for word with their own copies, it can
be safely concluded that the testator was reasonably assured that what
was read to him (those which he affirmed were in accordance with his
instructions), were the terms actually appearing on the typewritten
documents. This is especially true when we consider the fact that the three
instrumental witnesses were persons known to the testator, one being his
physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known
to him since childhood.

That Art. 808 was not followed strictly is beyond cavil. Instead of the
notary public and an instrumental witness, it was the lawyer (private
respondent) who drafted the eight-paged will and the five-paged codicil
who read the same aloud to the testator, and read them only once, not
twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance
and that the single reading suffices for purposes of the law. On the other
hand, petitioner maintains that the only valid compliance or compliance to
the letter and since it is admitted that neither the notary public nor an
instrumental witness read the contents of the will and codicil to Brigido,
probate of the latter's will and codicil should have been disallowed.

The spirit behind the law was served though the letter was not. Although
there should be strict compliance with the substantial requirements of the
law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which,
when taken into account, may only defeat the testator's will. 17

We sustain private respondent's stand and necessarily, the petition must

be denied.

As a final word to convince petitioner of the propriety of the trial court's

Probate Order and its affirmance by the Court of Appeals, we quote the
following pronouncement in Abangan v. Abangan, 18 to wit:

This Court has held in a number of occasions that substantial compliance is

acceptable where the purpose of the law has been satisfied, the reason
being that the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never
intended to be so rigid and inflexible as to destroy the testamentary
privilege. 14

The object of the solemnities surrounding the execution of

wills is to close the door against bad faith and fraud, to
avoid the substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore the laws on
the subject should be interpreted in such a way as to attain
these primordial ends. But, on the other hand, also one
must not lose sight of the fact that it is not the object of
the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given
assures such ends, any other interpretation whatsoever,
that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's will,
must be disregarded (emphasis supplied).

In the case at bar, private respondent read the testator's will and codicil
aloud in the presence of the testator, his three instrumental witnesses, and
the notary public. Prior and subsequent thereto, the testator affirmed, upon
being asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgement take place. There is no
evidence, and petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and communicated to the
testator. On the contrary, with respect to the "Huling Habilin," the day of
the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of
Atty. Rino is that Brigido Alvarado already acknowledged that the will was
drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the
purpose of securing his conformity to the draft. 15

Brigido Alvarado had expressed his last wishes in clear and unmistakable
terms in his "Huling Habilin" and the codicil attached thereto. We are
unwilling to cast these aside fro the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance

had been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the contents of the
draft of his will, had already been accomplished. To reiterate, substantial
compliance suffices where the purpose has been served.

Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677,
680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife
Matilde adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled "Deed of
Donation of Real Property Inter Vivos" 2(Deed of Donation) in favor of
petitioners mother Maria3 covering all the six lots which Matilde inherited
from her husband Crispin. The Deed of Donation provided:

WHEREFORE, the petition is DENIED and the assailed Decision of

respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering
the length of time that this case has remained pending, this decision is
immediately executory. Costs against petitioner.

That, for and in consideration of the love and affection of the DONOR
[Matilde] for the DONEE [Maria], the latter being adopted and hav[ing]
been brought up by the former the DONOR, by these presents, transfer and
convey, BY WAY OF DONATION, unto the DONEE the property abovedescribed, to become effective upon the death of the DONOR, but in
the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force
and effect; Provided, however, that anytime during the lifetime of the
DONOR or anyone of them who should survive, they could use[,] encumber
or even dispose of any or even all of the parcels of land herein
donated.4 (Emphasis and underscoring supplied)

SO ORDERED.

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and
676 were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5

G.R. No. 176943

Subsequently or on January 14, 1992, Matilde executed a last will and

testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her
"remaining properties" including Lot No. 674 to respondent.

October 17, 2008

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO

ALUAD,
and
CONNIE
ALUAD, petitioners,
vs.
ZENAIDO ALUAD, respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the
same year.7
On August 21, 1995, Marias heirs-herein petitioners filed before the
Regional Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and
recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:

DECISION
CARPIO MORALES, J.:

That in 1978, plaintiff[s] possessed the two (2) parcels of land abovedescribed until January 1991 when defendant entered and possessed the
two (2) parcels of land claiming as the adopted son of Crispin Aluad who
refused to give back possession until Matilde Aluad died in [1994] and then

Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad

were raised by the childless spouses Matilde Aluad (Matilde) and Crispin
Aluad (Crispin).

10

retained the possession thereof up to and until the present time, thus,
depriving the plaintiffs of the enjoyment of said parcels of land x x x;

3. Ordering the defendant to pay the plaintiffs:

a. Thirty thousand pesos (P30,000.00) as attorneys fees;

That after the death of Matilde R. Aluad, the plaintiffs succeeded by

inheritance by right of representation from their deceased mother, Maria
Aluad who is the sole and only daughter of Matilde Aluad[.]9

b. Twenty thousand pesos (P20,000.00), representing the income from

subject Lot 676, a year from 1991 up to the time said lot is delivered to the
plaintiffs, together with the interest thereof at the legal rate until fully paid;

To the complaint respondent alleged in his Answer. 10

c. Ten thousand pesos (P10,000.00), representing the income from the
subject Lot No. 674, a year from 1991 up to the time said lot is delivered to
the plaintiffs, plus legal interest thereof at the legal rate until fully paid;
and

That Lot 674 is owned by the defendant as this lot was adjudicated to him
in the Last Will and Testament of Matilde Aluad x x x while Lot 676 was
purchased by him from Matilde Aluad. These two lots are in his possession
as true owners thereof.11 (Underscoring supplied)

d. The costs of the suit.

Petitioners later filed a Motion for Leave to Amend Complaint Already Filed
to Conform to Evidence12 to which it annexed an Amended
Complaint13 which cited the donation of the six lots via Deed of Donation in
favor of their mother Maria. Branch 15 of the RTC granted the motion and
admitted the Amended Complaint.14

Defendants counterclaim is ordered dismissed for lack of merit.

SO ORDERED.19
On petitioners motion, the trial court directed the issuance of a writ of
execution pending appeal.20 Possession of the subject lots appears to have
in fact been taken by petitioners.

Respondent filed an Amended Answer 15 contending, inter alia, that the

Deed of Donation is forged and falsified and petitioners change of theory
showed that "said document was not existing at the time they filed their
complaint and was concocted by them after realizing that their false claim
that their mother was the only daughter of Matild[e] Aluad cannot in
anyway be established by them";16 and that if ever said document does
exist, the same was already revoked by Matilde "when [she] exercised all
acts of dominion over said properties until she sold Lot 676 to defendant
and until her death with respect to the other lots without any opposition
from Maria Aluad."17

By Decision21 of August 10, 2006, the Court of Appeals reversed the trial
courts decision, it holding that the Deed of Donation was actually a
donation mortis causa, not inter vivos, and as such it had to, but did not,
comply with the formalities of a will. Thus, it found that the Deed of
Donation was witnessed by only two witnesses and had no attestation
clause which is not in accordance with Article 805 of the Civil Code,
reading:

The trial court, by Decision18 of September 20, 1996, held that Matilde
could not have transmitted any right over Lot Nos. 674 and 676 to
respondent, she having previously alienated them to Maria via the Deed of
Donation. Thus it disposed:

Art. 805. Every will, other than a holographic will, must be subscribed at
the end thereof by the testator himself or by the testators 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.

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

The testator or the person requested by him to write his name and the
instrumental witnesses of the will shall, also sign, as aforesaid, each and
every page thereof, except the last on the left margin and all the pages
shall be numbered correlatively in letters placed on the upper part of each
page.

1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos.
674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to
the plaintiffs;

11

The attestation shall state the number of pages used upon which the will is
written, and the fact that that testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of
the testator, and of one another.

II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF
LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED
BY THE DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
III

If the attestation clause is in a language not known to the witnesses, it

shall be interpreted to them.

X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER

OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT
CANNOT BE DECLARED OWNER THEREOF.

While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matildes last
will and testament had not yet been probated. Thus the Court of Appeals
disposed:

IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION
PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39,
OF THE RULES OF COURT (AND ORDERING PETITIONERS TO RETURN
POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS
TO PAY ATTORNEYS FEES AND COST[S] OF SUIT. 26

WHEREFORE, finding the instant petition worthy of merit, the same is

hereby GRANTED and the Decision of the Regional Trial Court of Roxas
City, Branch 15, dated 20 September 1996, in Civil Case No. V-6686 for
declaration of ownership, recovery of ownership and possession, and
damages is REVERSED and SET ASIDE.

As did the appellate court, the Court finds the donation to petitioners
mother one of mortis causa, it having the following characteristics:

A new one is entered in its stead declaring defendant-appellant as the

lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffsappellees are directed to return the possession of the said lot to the
defendant-appellant.

(1) It conveys no title or ownership to the transferee before the death of

the transferor; or what amounts to the same thing, that the transferor
should retain the ownership (full or naked) and control of the property
while alive;

Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendantappellant as attorneys fees and litigation expenses.

(2) That before the death of the transferor, the transfer should be
revocable by the transferor at will,ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to
dispose of the properties conveyed; and

Costs against plaintiffs-appellees.

SO ORDERED.22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration23 having been denied,24 petitioners filed
the present Petition for Review,25contending that the Court of Appeals
erred

(3) That the transfer should be void if the transferor should survive the
transferee.27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective
upon the death of the DONOR" admits of no other interpretation than to
mean that Matilde did not intend to transfer the ownership of the six lots to
petitioners mother during her (Matildes) lifetime. 28

I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC,
Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER
VIVOS IN FAVOR OF PETITIONERS MOTHER IS IN FACT A DONATION MORTIS
CAUSA.

The statement in the Deed of Donation reading "anytime during the

lifetime of the DONOR or anyone of them who should survive, they

12

could use, encumber or even dispose of any or even all the parcels
of land herein donated"29 means that Matilde retained ownership of the
lots and reserved in her the right to dispose them. For the right to dispose
of a thing without other limitations than those established by law is an
attribute of ownership.30 The phrase in the Deed of Donation "or anyone of
them who should survive" is of course out of sync. For the Deed of
Donation clearly stated that it would take effect upon the death of the
donor, hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to the
donee, thus:

Petitioners arguments are bereft of merit.33

xxxx
x x x The herein subject deeds expressly provide that the donation shall be
rescinded in case [donees] the petitioners predecease [the donor] Conchita
Cabatingan. As stated in Reyes v. Mosqueda, one of the decisive
characteristics of a donation mortis causa is that the transfer should be
considered void if the donor should survive the donee. This is exactly what
Cabatingan provided for in her donations. If she really intended that the
donation should take effect during her lifetime and that the ownership of
the properties donated to the donee or independently of, and not by
reason of her death, she would not have expressed such proviso in the
subject deeds.34 (Underscoring supplied)

x x x [I]t is well to point out that the last provision (sentence) in the
disputed paragraph should only refer to Matilde Aluad, the donor, because
she was the only surviving spouse at the time the donation was
executed on 14 November 1981, as her husband Crispin Aluad [] had
long been dead as early as 1975.31

As the Court of Appeals observed, "x x x [t]hat the donation is mortis

causa is fortified by Matildes acts of possession as she continued to pay
the taxes for the said properties which remained under her name;
appropriated the produce; and applied for free patents for which OCTs were
issued under her name."35

The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period
when the donor provides in the aforequoted provisions, "but in the event
that the DONEE should die before the DONOR, the present donation shall
be deemed rescinded and [of] no further force and effect". When the donor
provides that should the "DONEE" xxx die before the DONOR, the present
donation shall be deemed rescinded and [of] no further force and effect"
the logical construction thereof is that after the execution of the subject
donation, the same became effective immediately and shall be "deemed
rescinded and [of] no further force and effect" upon the arrival of a
resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term
or period cannot rescind and render of no further force and effect a
donation which has never become effective, because, certainly what
donation is there to be rescinded and rendered of no further force and
effect upon the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the donee died?
32
(Underscoring supplied)

The donation being then mortis causa, the formalities of a will should have
been observed36 but they were not, as it was witnessed by only two, not
three or more witnesses following Article 805 of the Civil Code. 37
Further, the witnesses did not even sign the attestation clause 38 the
execution of which clause is a requirementseparate from the subscription
of the will and the affixing of signatures on the left-hand margins of the
pages of the will. So the Court has emphasized:
x x x Article 805 particularly segregates the requirement that the
instrumental witnesses sign each page of the will from the requisite that
the will be "attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature[s] are distinct
from each other. The signatures on the left-hand corner of every page
signify, among others, that the witnesses are aware that the page they are
signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the
attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the
instrumental witnesses signed the left-hand margin of the page containing
the unsigned attestation clause, such signatures cannot demonstrate these

A similar ratio in a case had been brushed aside by this Court, however,
thus:
x x x [P]etitioners contend that the stipulation on rescission in case
petitioners [donee] die ahead of [donor] Cabatingan is a resolutory
condition that confirms the nature of the donation as inter vivos.

13

witnesses undertakings in the clause, since the signatures that do appear

on the page were directed towards a wholly different avowal.

adverse party who would have no opportunity to present further evidence

material to the new theory, which it could have done had it been aware of
it at the time of the hearing before the trial court.45

x x x It is the witnesses, and not the testator, who are required under
Article 805 to state the number of pages used upon which the will is
written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another. The only proof
in the will that the witnesses have stated these elemental facts would be
their signatures on the attestation clause.39 (Emphasis and underscoring
supplied)

WHEREFORE, the petition is DENIED.

SO ORDERED.
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.

Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of
the Civil Code that every will must be acknowledged before a notary public
by the testator and the witnesses.

Raul S. Sison Law Office for petitioners.

More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also
followed.41

Rafael Dinglasan, Jr. for heir M. Roxas.

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

The Deed of Donation which is, as already discussed, one of mortis causa,
not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to Lot Nos.
674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of
Lot No. 674 to respondent by her last will and testament, subject of course
to the qualification that her (Matildes) will must be probated. With respect
to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.

GUTIERREZ, JR., J.:

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

Petitioners nevertheless argue that assuming that the donation of Lot No.
674 in favor of their mother is indeedmortis causa, hence, Matilde could
devise it to respondent, the lot should nevertheless have been awarded to
them because they had acquired it by acquisitive prescription, they having
been in continuous, uninterrupted, adverse, open, and public possession of
it in good faith and in the concept of an owner since 1978. 43

The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled "In the Matter of the Intestate Estate
of Andres G. de Jesus and Bibiana Roxas de Jesus" was filed by petitioner
Simeon R. Roxas, the brother of the deceased Bibiana Roxas de Jesus.

Petitioners failed to raise the issue of acquisitive prescription before the

lower courts, however, they having laid their claim on the basis of
inheritance from their mother. As a general rule, points of law, theories,
and issues not brought to the attention of the trial court cannot be raised
for the first time on appeal. 44 For a contrary rule would be unfair to the

On March 26, 1973, petitioner Simeon R. Roxas was appointed

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

14

respondent Judge Jose Colayco set the hearing of the probate of the
holographic Win on July 21, 1973.

WHEREFORE, the document purporting to be the

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

Petitioner Simeon R. Roxas testified that after his appointment as

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

The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which
must be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and may
be made in or out of the Philippines, and need not be
witnessed.

The testimony of Simeon R. Roxas was corroborated by the testimonies of

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

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

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

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

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

On August 24, 1973, respondent Judge Jose C. Colayco issued an order

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

We agree with the petitioner.

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

On December 10, 1973, respondent Judge Colayco reconsidered his earlier

order and disallowed the probate of the holographic Will on the ground that
the word "dated" has generally been held to include the month, day, and
year. The dispositive portion of the order reads:

15

The underlying and fundamental objectives permeating the

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

document may suffer from some imperfection of language,

or other non-essential defect. ... (Leynez v. Leynez 68 Phil.
745).
If the testator, in executing his Will, attempts to comply with all the
requisites, although compliance is not literal, it is sufficient if the objective
or purpose sought to be accomplished by such requisite is actually
attained by the form followed by the testator.

This objective is in accord with the modem tendency with

respect to the formalities in the execution of wills. (Report
of the Code Commission, p. 103)

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

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

Bustos (27 SCRA 327) he emphasized that:

The object of the solemnities surrounding the execution of

wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty
their truth and authenticity. ...

xxx xxx xxx

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

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

contingencies as that of two competing Wills executed on the same day, or
of a testator becoming insane on the day on which a Will was executed
(Velasco v. Lopez, 1 Phil. 720). There is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence
of bad faith and fraud in its execution nor was there any substitution of
Wins and Testaments. There is no question that the holographic Will of the
deceased Bibiana Roxas de Jesus was entirely written, dated, and signed
by the testatrix herself and in a language known to her. There is also no
question as to its genuineness and due execution. All the children of the
testatrix agree on the genuineness of the holographic Will of their mother
and that she had the testamentary capacity at the time of the execution of
said Will. The objection interposed by the oppositor-respondent Luz Henson
is that the holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article
810 of the Civil Code. This objection is too technical to be entertained.

Thus, the prevailing policy is to require satisfaction of the legal

requirements in order to guard against fraud and bad faith but without
undue or unnecessary curtailment of testamentary privilege Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial
compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Win should be admitted
to probate (Rey v. Cartagena 56 Phil. 282). Thus,
xxx xxx xxx
... More than anything else, the facts and circumstances of
record are to be considered in the application of any given
rule. If the surrounding circumstances point to a regular
execution of the wilt and the instrument appears to have
been executed substantially in accordance with the
requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud,
lean towards its admission to probate, although the

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

16

WHEREFORE, the instant petition is GRANTED. The order appealed from is

REVERSED and SET ASIDE and the order allowing the probate of the
holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
G.R. Nos. 83843-44

sold said parcel of land to Navat for only Five Thousand (P5,000) Pesos.
(Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers,
Gaudencio and Jesus, for the annulment of said purported Deed of
Absolute Sale over a parcel of land which Sagrado allegedly had already
acquired by devise from their father Melecio Labrador under a holographic
will executed on March 17, 1968, the complaint for annulment docketed as
Civil Case No. 934-I, being premised on the fact that the aforesaid Deed of
Absolute Sale is fictitious.

April 5, 1990

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

MELECIO
LABRADOR.
SAGRADO
LABRADOR
(Deceased),
substituted by ROSITA LABRADOR, ENRICA LABRADOR, and
CRISTOBAL
LABRADOR,petitioners-appellants,
vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
Benjamin
C.
Santos
Law
Offices
Rodrigo V. Fontelera for private respondents.

for

After both parties had rested and submitted their respective evidence, the
trial court rendered a joint decision dated February 28, 1985, allowing the
probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the
defendants in Civil Case No. 934-I) to reimburse to the petitioners the sum
of P5,000.00 representing the redemption price for the property paid by
the plaintiff-petitioner Sagrado with legal interest thereon from December
20, 1976, when it was paid to vendee a retro.

petitioners.

Respondents appealed the joint decision to the Court of Appeals, which on

March 10, 1988 modified said joint decision of the court a quo by denying
the allowance of the probate of the will for being undated and reversing
the order of reimbursement. Petitioners' Motion for Reconsideration of the
aforesaid decision was denied by the Court of Appeals, in the resolution of
June 13, 1988. Hence, this petition.

PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of
one Melecio Labrador is dated, as provided for in Article 810 2 of the New
Civil Code.

Petitioners now assign the following errors committed by respondent court,

to wit:

The antecedent and relevant facts are as follows: On June 10, 1972,
Melecio Labrador died in the Municipality of Iba, province of Zambales,
where he was residing, leaving behind a parcel of land designated as Lot
No. 1916 under Original Certificate of Title No. P-1652, and the following
heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio, Josefina,
Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.

I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND
APPROVING THE PROBATE OF THE HOLOGRAPHIC WILL OF THE
TESTATOR MELECIO LABRADOR; and

On July 28, 1975, Sagrado Labrador (now deceased but substituted by his
heirs), Enrica Labrador and Cristobal Labrador, filed in the court a quo a
petition for the probate docketed as Special Proceeding No. 922-I of the
alleged holographic will of the late Melecio Labrador.

II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF
THE LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE
THOUSAND PESOS REPRESENTING THE REDEMPTION PRICE WAS
ERRONEOUS.

Subsequently, on September 30, 1975, Jesus Labrador (now deceased but

substituted by his heirs), and Gaudencio Labrador filed an opposition to the
petition on the ground that the will has been extinguished or revoked by
implication of law, alleging therein that on September 30, 1971, that is,
before Melecio's death, for the consideration of Six Thousand (P6,000)
Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot
No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador

The alleged undated holographic will written in Ilocano translated into

English, is quoted as follows:

17

ENGLISH
INTERPRETATION
OF
LATE
MELECIO
LABRADOR
BY ATTY. FIDENCIO L. FERNANDEZ

THE
WILL
WRITTEN
IN

OF
THE
ILOCANO

III THIRD PAGE

And that referring to the other places of property, where the said
property is located, the same being the fruits of our earnings of the
two mothers of my children, there shall be equal portion of each
share among themselves, and or to be benefitted with all those
property, which property we have been able to acquire.

I First Page
This is also where it appears in writing of the place which is
assigned and shared or the partition in favor of SAGRADO
LABRADOR which is the fishpond located and known place as
Tagale.

That in order that there shall be basis of the truth of this writing
(WILL) which I am here hereof manifesting of the truth and of the
fruits of our labor which their two mothers, I am signing my
signature below hereof, and that this is what should be complied
with, by all the brothers and sisters, the children of their two
mothers JULIANA QUINTERO PILARISA and CASIANA AQUINO
VILLANUEVA Your father who made this writing (WILL), and he is,
MELECIO LABRADOR y RALUTIN (p. 46, Rollo)

And this place that is given as the share to him, there is a

measurement of more or less one hectare, and the boundary at the
South is the property and assignment share of ENRICA LABRADOR,
also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment
belonging to CRISTOBAL LABRADOR, who likewise is also their
brother. That because it is now the time for me being now ninety
three (93) years, then I feel it is the right time for me to partition
the fishponds which were and had been bought or acquired by us,
meaning with their two mothers, hence there shall be no
differences among themselves, those among brothers and sisters,
for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and
assignment so that there shall not be any cause of troubles or
differences among the brothers and sisters.

The petition, which principally alleges that the holographic will is really
dated, although the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect
compliance with Article 810.1wphi1 It is worthy of note to quote the first
paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father. (emphasis supplied)
(p. 46, Rollo)

II Second Page
And this is the day in which we agreed that we are making the
partitioning and assigning the respective assignment of the said
fishpond, and this being in the month of March, 17th day, in the
year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no
other than MELECIO LABRADOR, their father.

The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are
present in the subject will.

Now, this is the final disposition that I am making in writing and it

is this that should be followed and complied with in order that any
differences or troubles may be forestalled and nothing will happen
along these troubles among my children, and that they will be in
good relations among themselves, brothers and sisters;

Respondents claim that the date 17 March 1968 in the will was when the
testator and his beneficiaries entered into an agreement among
themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution of
the holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory
heirs like the respondents. This was thus a failure to comply with Article
783 which defines a will as "an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition
of his estate, to take effect after his death."

And those improvements and fruits of the land; mangoes, bamboos

and all coconut trees and all others like the other kind of bamboo
by name of Bayog, it is their right to get if they so need, in order
that there shall be nothing that anyone of them shall complain
against the other, and against anyone of the brothers and sisters.

18

Respondents are in error. The intention to show 17 March 1968 as the date
of the execution of the will is plain from the tenor of the succeeding words
of the paragraph. As aptly put by petitioner, the will was not an agreement
but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal
that Melecio Labrador was fully aware of the nature of the estate property
to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.

On March 17, 1952, Fausto E. Gan initiated them 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:

Anent the second issue of finding the reimbursement of the P5,000

representing the redemption price as erroneous, respondent court's
conclusion is incorrect. When private respondents sold the property
(fishpond) with right to repurchase to Navat for P5,000, they were actually
selling property belonging to another and which they had no authority to
sell, rendering such sale null and void. Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the
property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay

nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan,
Bulacan ay aking ipinamamana sa aking mga kamag-anakang
sumusunod:

Nobyembre 5, 1951.

Vicente
Sr. .............................................

PREMISES CONSIDERED, the decision of the Court of Appeals dated March

10, 1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).

Esguerra, 5 Bahagi

Fausto
Gan .........................................................

E. 2 Bahagi

Rosario
Gan .........................................................

E. 2 Bahagi

Filomena
Alto ..........................................................

1 Bahagi

Beatriz
Alto ..............................................................

1 Bahagi

SO ORDERED.

G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased.

FAUSTO
E.
GAN, petitioner-appellant,
vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for
appellant.
Arturo M. Tolentino for appellee.

At ang aking lahat ng ibang kayamanan sa Maynila at iba

panglugar ay aking ipinamamana sa aking asawang si Idelfonso D.
Yap sa kondisyong siya'y magpapagawa ng isang Health Center na
nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad
Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na
ang aking asawa ang magpuno upang matupad ang aking
kagustuhan.

BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in
the University of Santo Tomas Hospital, leaving properties in Pulilan,
Bulacan, and in the City of Manila.

19

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 of by the Yap spouses. Physician's
help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m.,
found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctor's
advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side.
These two persons swore that Mrs. Felicidad Esguerra Yap made no will,
and could have made no will on that day.

(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:

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.

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.

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.

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

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

20

weakness of the opposition but on the strength of the evidence of the

petitioner, who has the burden of proof.

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 Spanish Civil Code permitted the execution of holographic wills along
with other forms. The Code of Civil Procedure (Act 190) approved August 7,
1901, adopted only one form, thereby repealing the other forms, including
holographic wills.

The 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.

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 andevery 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.

Obviously, when the will itself is not submitted, these means of opposition,
and of assessing the evidence are not available. And then the only
guaranty of authenticity3 the testator's handwriting has disappeared.
Therefore, the question presents itself, may a holographic will be probated
upon the testimony of witnesses who have allegedly seen it and who
declare that it was in the handwriting of the testator? How can the
oppositor prove that such document was not in the testator's handwriting?
His witnesses who know testator's handwriting have not examined it. His
experts can not testify, because there is no way to compare the alleged
testament with other documents admittedly, or proven to be, in the
testator's hand. The oppositor will, therefore, be caught between the upper
millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponent's
witnesses may be honest and truthful; but they may have been shown a
faked document, and having no interest to check the authenticity thereof
have taken no pains to examine and compare. Or they may be perjurers
boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document
which they believed was in the handwriting of the deceased. Of course, the
competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings 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 object of such requirements it has been said, is to close the door
against bad faith and fraud, to prevent substitution of wills, to guarantee
their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to
avoid those who have no right to succeed the testator would succeed him
and be 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. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements 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 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

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

21

contemplated holographic wills which could not then be validly made here.
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.)

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 Ilenaron todos esos requisitos, sino
que de la expresada redaccion el precepto legal, y por el tiempo en
que el verbo se emplea, se desprende la necesidad de que el
documento se encuentre en dichas condiciones en el momento de
ser presentado a la Autoridad competente, para au adveracion y
protocolizacion; y como consecuencia ineludible de ello, forzoso es
affirmar que el de autos carece de validez y aficacia, por no
estarfirmado 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 . .
..

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 whetherin 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.

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 VI
meses y el obispo o el juez tomen otros tales tres escritos, que
fuesen fechos por su mano daquel que fizo la manda; e por
aquellos escriptos, si semjara la letra de la manda, sea confirmada
la manda. E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra
vez, y en esta manera vala la manda. (Art. 689, Scaevola--Codigo
Civil.)

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 privilegeto comply with the will, if genuine, a right
which they should not be denied by withholding inspection thereof from
them.

(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

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.

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

22

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.

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.

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 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

In the case of ordinary wills, it is quite hard to convince three witnesses

(four with the notary) deliberately to lie. And then their lies could be
checked and exposed, their whereabouts and acts on the particular day,
the likelihood that they would be called by the testator, their intimacy with
the testator, etc. And if they were intimates or trusted friends of the
testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on
account of the will.

Wherefore, the rejection of the alleged will must be sustained.

Judgment affirmed, with costs against petitioner.
G.R. No. L-58509 December 7, 1982

Whereas in the case of holographic wills, if oral testimony were

admissible9 only one man could engineer the fraud this way: after making a
clever or passable imitation of the handwriting and signature of the
deceased, he may contrive to let three honest and credible witnesses see
and read the forgery; and the latter, having no interest, could easily fall for
it, and in court they would in all good faith 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.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF

RICARDO B. BONILLA deceased, MARCELA RODELAS, petitionerappellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.

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

RELOVA, J.:

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

This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:

23

... On January 11, 1977, appellant filed a petition with the

Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance of
letters testamentary in her favor. The petition, docketed as
Sp. Proc. No. 8432, was opposed by the appellees Amparo
Aranza Bonilla, Wilferine Bonilla Treyes Expedita Bonilla
Frias and Ephraim Bonilla on the following grounds:

The appellees then filed a motion for reconsideration on

the ground that the order was contrary to law and settled
pronouncements and rulings of the Supreme Court, to
which the appellant in turn filed an opposition. On July 23,
1979, the court set aside its order of February 23, 1979
and dismissed the petition for the probate of the will of
Ricardo B. Bonilla. The court said:

(1) Appellant was estopped from claiming that the

deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;

... It is our considered opinion that once the original copy of

the holographic will is lost, a copy thereof cannot stand in
lieu of the original.
In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic wills
the law, it is reasonable to suppose, regards the document
itself as the material proof of authenticity of said wills.

(2) The alleged copy of the alleged holographic will did not
contain a disposition of property after death and was not
intended to take effect after death, and therefore it was not
a will

MOREOVER, this Court notes that the alleged holographic

will was executed on January 25, 1962 while Ricardo B.
Bonilla died on May 13, 1976. In view of the lapse of more
than 14 years from the time of the execution of the will to
the death of the decedent, the fact that the original of the
will could not be located shows to our mind that the
decedent had discarded before his death his allegedly
missing Holographic Will.

(3) The alleged hollographic will itself,and not an alleged

copy thereof, must be produced, otherwise it would
produce no effect, as held in Gam v. Yap, 104 Phil. 509; and
(4 ) The deceased did not leave any will, holographic or
otherwise, executed and attested as required by law.
The appellees likewise moved for the consolidation of the
case with another case Sp. Proc. No, 8275). Their motion
was granted by the court in an order dated April 4, 1977.

Appellant's motion for reconsideration was denied. Hence, an appeal to the

Court of Appeals in which it is contended that the dismissal of appellant's
petition is contrary to law and well-settled jurisprudence.

On November 13, 1978, following the consolidation of the

cases, the appellees moved again to dismiss the petition
for the probate of the will. They argued that:

On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged that
the trial court committed the following assigned errors:

(1) The alleged holographic was not a last will but merely
an instruction as to the management and improvement of
the schools and colleges founded by decedent Ricardo B.
Bonilla; and

I. THE LOWER COURT ERRED IN HOLDING THAT A LOST

HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;

(2) Lost or destroyed holographic wills cannot be proved by

secondary evidence unlike ordinary wills.

II. THE LOWER COURT ERRED IN HOLDING THAT THE

DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
MISSING HOLOGRAPHIC WILL;

Upon opposition of the appellant, the motion to dismiss

was denied by the court in its order of February 23, 1979.

24

III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S

WILL.
The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy. Pursuant to
Article 811 of the Civil Code, probate of holographic wills is the allowance
of the will by the court after its due execution has been proved. The
probate may be uncontested or not. If uncontested, at least one Identifying
witness is required and, if no witness is available, experts may be resorted
to. If contested, at least three Identifying witnesses are required. However,
if the holographic will has been lost or destroyed and no other copy is
available, the will can not be probated because the best and only evidence
is the handwriting of the testator in said will. It is necessary that there be a
comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the
holographic will may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap, 104 PHIL. 509,
the Court ruled that "the execution and the contents of a lost or destroyed
holographic will may not be proved by the bare testimony of witnesses who
have seen and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the document itself
as material proof of authenticity." But, in Footnote 8 of said decision, it says
that "Perhaps it may be proved by a photographic or photostatic copy.
Even a mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic
or xerox copy of the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the deceased can be
determined by the probate court.
G.R. No. L-14003

WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.

August 5, 1960

FEDERICO
vs.
CESARIO SINGSON, oppositor-appellee.

AZAOLA, petitioner-appellant,

SO ORDERED.
F.
Lavides
and
L.B.
Alcuaz
Vicente J. Cuna and P.S. Singson for appellee.

for

appellant.

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

This appeal, taken on points of law from a decision rendered on 15 January
1958 by the Court of First Instance of Quezon City in its Special

25

Proceedings No. Q-2640, involves the determination of the quantity of

evidence required for the probate of a holographic will.

The opposition to the probate was on the ground that (1) the execution of
the will was procured by undue and improper pressure and influence on
the part of the petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.

The established facts are thus summarized in the decision appealed from
(Rec. App. pp. 22-24):
"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de Yance
died at 13 Luskot, Quezon City, known to be the last residence of
said testatrix; that Francisco Azaola, petitioner herein for probate
of the holographic will, submitted the said holographic will (Exh. C)
whereby Maria Milagros Azaola was made the sole heir as against
the nephew of deceased Cesario Singson; that witness Francisco
Azaola testified that he saw the holographic will (Exh. C) one
month, more or less, before the death of the testatrix, as the same
was handed to him and his wife; that the witness testified also that
he recognized all the signatures appearing in the holographic will
(Exh. C) as the handwriting of the testatrix and to reinforce said
statement, witness presented the mortgage (Exh. E), the special
power of the attorney (Exh. F), and the general power of attorney
(Exh. F-1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in court
two residence certificates (Exhs. H and H-1) to show the signatures
of the testatrix, for comparison purposes; that said witness, Azaola,
testified that the penmanship appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as well
as the signatures appearing in the aforesaid documentary evidence
is in the handwriting of the testatrix as well as the signatures
appearing therein are the signatures of the testatrix; that said
witness, in answer to a question of his counsel admitted that the
holographic will was handed to him by the testatrix. "apparently it
must have been written by her" (t.s.n., p. 11). However, on page
16 on the same transcript of the stenographic notes, when the
same witness was asked by counsel if he was familiar with the
penmanship and handwriting of the deceased Fortunata Vda. de
Yance, he answered positively in the affirmative and when he was
asked again whether the penmanship referred to in the previous
answer as appearing in the holographic will (Exh. C) was hers
(testatrix'), he answered, "I would definitely say it is hers"; that it
was also established in the proceedings that the assessed value of
the property of the deceased in Luskot, Quezon City, is in the
amount of P7,000.00.

The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare that
the will and the signature are in the writing of the testatrix, the probate
being contested; and because the lone witness presented by the proponent
"did not prove sufficiently that the body of the will was written in the
handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not questioned;
and second, that Article 811 does not mandatorily require the production of
three witnesses to identify the handwriting and signature of a holographic
will, even if its authenticity should be denied by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be necessary
that at least one witness who knows the handwriting and signature
of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary, expert
testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but
even if the genuineness of the holographic will were contested, we are of
the opinion that Article 811 of our present Civil Code can not be interpreted
as to require the compulsory presentation of three witnesses to identify the
handwriting of the testator, under penalty of having the probate denied.
Since no witness may have been present at the execution of a holographic
will, none being required by law (Art. 810, new Civil Code), it becomes
obvious that the existence of witness possessing the requisite
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

26

be witnesses "who know the handwriting and signature of the testator" and
who can declare (truthfully, of course, even if the law does not so express)
"that the will and the signature are in the handwriting of the testator".
There may be no available witness of the testator's hand; or even if so
familiarized, the witnesses may be unwilling to give a positive opinion.
Compliance with the rule of paragraph 1 of Article 811 may thus become
an impossibility. That is evidently the reason why the second paragraph of
Article 811 prescribes that

La manera como esta concebida la redaccion del ultimo apartado

de dicho precepto induce la conclusion de que siempre o por lo
menos, en la mayor parte de los casos, el Juez debe acudir al
criterio pericial para que le ilustre acerca de la autenticidad del
testamento olografo, aunque ya esten insertas en los autos del
expediente las declaraciones testificales. La prudencia con que el
Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la indole delicada y peligrosa del testamento olografo lo
hace necesario para mayor garantia de todos los interes
comprometidos en aquel.

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.

En efecto, el cotejo pericial de letras puede ser una confirmacion

facultativa del dicho profano de los testigos y un modo de
desvanecer las ultimas dudas que pudieran ocurrir al Juez acerca
de la autenticidad que trata de averigaur y declarar. Para eso se ha
escrito la frase del citado ultimo apartado, (siempre que el Juez lo
estime conveniente), haya habido o no testigos y dudaran o no
estos respecto de los extremos por que son preguntados.

As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can
not be ignored that the requirement can be considered mandatory only in
the case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness need
be present (Art. 10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.

El arbitrio judicial en este caso debe formarse con independencia

de los sucesos y de su significacion, para responder debidamente
de las resoluciones que haya de dictar.
And because the law leaves it to the trial court if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the
Civil Code is merely directory and is not mandatory.

Again, under Article 811, the resort to expert evidence is conditioned by

the words "if the Court deem it necessary", which reveal that what the law
deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting
experts. The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.

Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of
justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold a
new trial in conformity with this opinion. But evidence already on record
shall not be retaken. No costs.

Commenting on analogous provisions of Article 691 of the Spanish Civil

Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd Ed.,
p.421), sagely remarks:

27

Reversal of the judgment appealed from and the probate of the

holographic will in question be called for. The rule is that after
plaintiff has completed presentation of his evidence and the
defendant files a motion for judgment on demurrer to evidence on
the ground that upon the facts and the law plaintiff has shown no
right to relief, if the motion is granted and the order to dismissal is
reversed on appeal, the movant loses his right to present evidence
in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment
may, therefore, be rendered for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the
testator Matilde Seo Vda. de Ramonal.2
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia
Patigas, devisees and legatees of the holographic will of the deceased
Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis
Oriental, Branch 18, a petition3 for probate of the holographic will of the
deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo Vda.
de Ramonal, was of sound and disposing mind when she executed the will
on August 30, 1978, that there was no fraud, undue influence, and duress
employed in the person of the testator, and will was written voluntarily.
G.R. No. 123486

The assessed value of the decedent's property, including all real and
personal property was about P400,000.00, at the time of her death. 4

August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.
EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA
PATIGAS, respondents.

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition5 to the petition for probate, alleging that the holographic will
was a forgery and that the same is even illegible. This gives an impression
that a "third hand" of an interested party other than the "true hand" of
Matilde Seo Vda. de Ramonal executed the holographic will.

PARDO, J.:

Petitioners argued that the repeated dates incorporated or appearing on

will after every disposition is out of the ordinary. If the deceased was the
one who executed the will, and was not forced, the dates and the signature
should appear at the bottom after the dispositions, as regularly done and
not after every disposition. And assuming that the holographic will is in the
handwriting of the deceased, it was procured by undue and improper

Before us is a petition for review on certiorari of the decision of the Court of

Appeals1 and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay
and witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and
signature therein (exhibit S) are hers, enough to probate said will.

28

pressure and influence on the part of the beneficiaries, or through fraud

and trickery.1wphi1.nt

to 1969. During those eleven (11) years of close association the deceased,
she acquired familiarity with her signature and handwriting as she used to
accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting
rentals from her various tenants of commercial buildings, and deceased
always issued receipts. In addition to this, she (witness Matilde Binanay)
assisted the deceased in posting the records of the accounts, and carried
personal letters of the deceased to her creditors.

Respondents presented six (6) witnesses and various documentary

evidence. Petitioners instead of presenting their evidence, filed a
demurrer6 to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of
the deceased Matilde Seo Vda. de Ramonal.

Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30,
1978, which was personally and entirely written, dated and signed, by the
deceased and that all the dispositions therein, the dates, and the
signatures in said will, were that of the deceased.

On November 26, 1990, the lower Court issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer
to Evidence having being well taken, same is granted, and the
petition for probate of the document (Exhibit "S") on the purported
Holographic Will of the late Matilde Seo Vda. de Ramonal, is
denied for insufficiency of evidence and lack of merits. 7

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of
Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings
and documents signed by the deceased in connection with the proceedings
of her late husband, as a result of which he is familiar with the handwriting
of the latter. He testified that the signature appearing in the holographic
will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but
he can not be sure.

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

support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She
testified that she processed the application of the deceased for pasture
permit and was familiar with the signature of the deceased, since the
signed documents in her presence, when the latter was applying for
pasture permit.

To have a clear understanding of the testimonies of the witnesses, we

recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental,
where the special proceedings for the probate of the holographic will of the
deceased was filed. He produced and identified the records of the case.
The documents presented bear the signature of the deceased, Matilde
Seo Vda. de Ramonal, for the purpose of laying the basis for comparison
of the handwriting of the testatrix, with the writing treated or admitted as
genuine by the party against whom the evidence is offered.

Finally, Evangeline Calugay, one of the respondents, testified that she had
lived with the deceased since birth, and was in fact adopted by the latter.
That after a long period of time she became familiar with the signature of
the deceased. She testified that the signature appearing in the holographic
will is the true and genuine signature of Matilde Seo Vda. de Ramonal.

Generosa Senon, election registrar of Cagayan de Oro, was presented to

produced and identify the voter's affidavit of the decedent. However, the
voters' affidavit was not produced for the same was already destroyed and
no longer available.

The holographic will which was written in Visayan, is translated in English

as follows:

Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matilde's husband, the
latter lived with her in her parent's house for eleven (11) years from 1958

August 30, 1978

Instruction

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

29

(Sgd) Matilde Vda de Ramonal

August 30, 1978

August 30, 1978

Gene and Manuel:

2. Josefina Salcedo must be given 1,500 square meters at Pinikan

Street.

Follow my instruction in order that I will rest peacefully.

Mama

(Sgd) Matilde Vda de Ramonal

Matilde Vda de Ramonal
August 30, 1978
On October 9, 1995, the Court of Appeals, rendered decision 9 ruling that
the appeal was meritorious. Citing the decision in the case of Azaola
vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a
recognized authority in civil law, the Court of Appeals held:

3. My jewelry's shall be divided among:

1. Eufemia Patigas

. . . even if the genuineness of the holographic will were contested,

we are of the opinion that Article 811 of our present civil code can
not be interpreted as to require the compulsory presentation of
three witnesses to identify the handwriting of the testator, under
penalty of having the probate denied. Since no witness may have
been present at the execution of the holographic will, none being
required by law (art. 810, new civil code), it becomes obvious that
the existence of witnesses possessing the requisite qualifications is
a matter beyond the control of the proponent. For it is not merely a
question of finding and producing any three witnesses; they must
be witnesses "who know the handwriting and signature of the
testator" and who can declare (truthfully, of course, even if the law
does not express) "that the will and the signature are in the
handwriting of the testator." There may be no available witness
acquainted with the testator's hand; or even if so familiarized, the
witness maybe unwilling to give a positive opinion. Compliance
with the rule of paragraph 1 of article 811 may thus become an
impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that

2. Josefina Salcedo
3. Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to
Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in
favor of Evangeline R. Calugay, Helen must continue with the Sta.
Cruz, once I am no longer around.

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.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

As can be see, the law foresees, the possibility that no qualified

witness ma be found (or what amounts to the same thing, that no
competent witness may be willing to testify to the authenticity of

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

(Sgd) Matilde Vda de Ramonal

30

the will), and provides for resort to expert evidence to supply the
deficiency.

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

Binanay and other witnesses definitely and in no uncertain terms testified
that the handwriting and signature in the holographic will were those of the
testator herself.

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

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and

witness Matilde Ramonal Binanay, the Court of Appeals sustained the
authenticity of the holographic will and the handwriting and signature
therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson, 109
Phil. 102, relied upon by the respondent Court of Appeals, was
applicable to the case.

Again, under Art. 811, the resort to expert evidence is conditioned

by the words "if the court deem it necessary", which reveal that
what the law deems essential is that the court should be convinced
of the will's authenticity. Where the prescribed number of
witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary
to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the
court may still, and in fact it should resort to handwriting experts.
The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that
the true intention of the testator be carried into effect.

(2) Whether or not the Court of Appeals erred in holding that

private respondents had been able to present credible evidence to
that the date, text, and signature on the holographic will written
entirely in the hand of the testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing the
signatures in the holographic will of Matilde Seo Vda. de Ramonal.
In this petition, the petitioners ask whether the provisions of Article 811 of
the Civil Code are permissive or mandatory. The article provides, as a
requirement for the probate of a contested holographic will, that at least
three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.1wphi1.nt

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

holographic will were contested, Article 811 of the civil code cannot
be interpreted as to require the compulsory presentation of three
witnesses to identify the handwriting of the testator, under penalty
of the having the probate denied. No witness need be present in
the execution of the holographic will. And the rule requiring the
production of three witnesses is merely permissive. What the law
deems essential is that the court is convinced of the authenticity of
the will. Its duty is to exhaust all available lines of inquiry, for the
state is as much interested in the proponent that the true intention
of the testator be carried into effect. And because the law leaves it
to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses
dissatisfaction with the testimony of the lay witnesses. 10

We are convinced, based on the language used, that Article 811 of the Civil
Code is mandatory. The word "shall" connotes a mandatory order. We have
ruled that "shall" in a statute commonly denotes an imperative obligation
and is inconsistent with the idea of discretion and that the presumption is
that the word "shall," when used in a statute is mandatory. 11
Laws are enacted to achieve a goal intended and to guide against an evil
or mischief that aims to prevent. In the case at bar, the goal to achieve is
to give effect to the wishes of the deceased and the evil to be prevented is
the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.

31

So, we believe that the paramount consideration in the present petition is

to determine the true intent of the deceased. An exhaustive and objective
consideration of the evidence is imperative to establish the true intent of
the testator.

Q. Showing to you the receipt dated 23 October 1979, is this the

one you are referring to as one of the receipts which she issued to
them?
A. Yes, sir.

It will be noted that not all the witnesses presented by the respondents
testified explicitly that they were familiar with the handwriting of testator.
In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis
Oriental, he merely identified the record of Special Proceedings No. 427
before said court. He was not presented to declare explicitly that the
signature appearing in the holographic was that of the deceased.

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

signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q.
Why do you say that is the signature of Matilde Vda. De
Ramonal?

Generosa E. Senon, the election registrar of Cagayan de Oro City, was

presented to identify the signature of the deceased in the voter's affidavit,
which was not even produced as it was no longer available.

A. I am familiar with her signature.

Matilde Ramonal Binanay, on the other hand, testified that:

Q.
Now, you tell the court Mrs. Binanay, whether you know
Matilde vda de Ramonal kept records of the accounts of her
tenants?

Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro City. Would
you tell the court what was your occupation or how did Matilde Vda
de Ramonal keep herself busy that time?

A. Yes, sir.
Q. Why do you say so?

A. Collecting rentals.
Q. From where?

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

Matilde Vda. De Ramonal.

A. From the land rentals and commercial buildings at PabayoGomez streets.12

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

xxx

xxx

A. In handwritten.14

xxx

xxx

Q. Who sometime accompany her?

Q. In collecting rentals does she issue receipts?

A. Posting records.

A. Yes, sir.13
xxx

xxx

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

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

A. I sometimes accompany her.

xxx

xxx

Q. Aside from that?

xxx

A. Carrying letters.

32

Q. Letters of whom?

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

A. Matilde.

A. It was in my mother's possession.

Q. To whom?

Q. So, it was not in your possession?

A. To her creditors.15

A. Sorry, yes.

xxx

xxx

xxx

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

Q. You testified that at time of her death she left a will. I am

showing to you a document with its title "tugon" is this the
document you are referring to?

A. 1985.17
xxx

xxx

xxx

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

Q.
Showing to you this exhibit "S", there is that handwritten
"tugon", whose handwriting is this?
A. My Aunt.

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

Q. Why do you say this is the handwriting of your aunt?

Q. After taking that document you kept it with you?
A. Because I am familiar with her signature.

16

A. I presented it to the fiscal.

What Ms. Binanay saw were pre-prepared receipts and letters of the
deceased, which she either mailed or gave to her tenants. She did not
declare that she saw the deceased sign a document or write a note.

Q. For what purpose?

A. Just to seek advice.

Further, during the cross-examination, the counsel for petitioners elicited

the fact that the will was not found in the personal belongings of the
deceased but was in the possession of Ms. Binanay. She testified that:

Q. Advice of what?
A. About the will.18

Q.
Mrs. Binanay, when you were asked by counsel for the
petitioners if the late Matilde Seno vda de Ramonal left a will you
said, yes?

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

A. Yes, sir.
Q. Who was in possession of that will?

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

A. I.

33

Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a

sickly person is that correct?

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

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

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

A. Yes, sir.19
A. That was I think. (sic).
xxx

xxx

xxx

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

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

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

A. Yes, sir.

A. Yes, sir.

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

Q. Now, let us go to the third signature of Matilde Ramonal. Do

you know that there are retracings in the word Vda.?

Q. Again the third signature of Matilde Vda de Ramonal the letter

L in Matilde is continued towards letter D.

A. Yes, sir.21

A. Yes, sir.

Evangeline Calugay declared that the holographic will was written, dated
and signed in the handwriting of the testator. She testified that:

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

A. Yes, sir.20
xxx

the
will
the
the

xxx

Q. You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years. Could you tell
the court the services if any which you rendered to Matilde
Ramonal?

xxx

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

A. During my stay I used to go with her to the church, to market

and then to her transactions.
Q. What else? What services that you rendered?

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

A. After my college days I assisted her in going to the bank,

paying taxes and to her lawyer.

34

Q. What was your purpose of going to her lawyer?

xxx

xxx

xxx

A. I used to be her personal driver.

Q. Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?

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

A. As far as I know they have no legitimate children.25

A. Yes, sir.

xxx

Q. How come that you acquired familiarity?

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

Where?

xxx

xxx

A. Because I lived with her since birth. 22

A. Here in Cagayan de Oro City.
xxx

xxx

xxx
Q. Do you have services rendered with the deceased Matilde vda
de Ramonal?

Q. Now, I am showing to you Exhibit S which is captioned "tugon"

dated Agosto 30, 1978 there is a signature here below item No. 1,
will you tell this court whose signature is this?

A. I assisted her in terminating the partition, of properties.

A. Yes, sir, that is her signature.

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

Q. Why do you say that is her signature?

A. I am familiar with her signature.

A. It is about the project partition to terminate the property, which

was under the court before.26

23

xxx

So, the only reason that Evangeline can give as to why she was familiar
with the handwriting of the deceased was because she lived with her since
birth. She never declared that she saw the deceased write a note or sign a
document.

xxx

xxx

Q.
Appearing in special proceeding no. 427 is the amended
inventory which is marked as exhibit N of the estate of Justo
Ramonal and there appears a signature over the type written word
Matilde vda de Ramonal, whose signature is this?

The former lawyer of the deceased, Fiscal Waga, testified that:

Q. Do you know Matilde Vda de Ramonal?

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

A. Yes, sir I know her because she is my godmother the husband

is my godfather. Actually I am related to the husband by
consanguinity.

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

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

Q. Can you tell the name of the husband?

xxx
A. The late husband is Justo Ramonal.

24

35

xxx

xxx

Q. Aside from attending as counsel in that Special Proceeding

Case No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de
Ramonal?

A. The same is true with the signature in item no. 4. It seems that
they are similar.29

A. I can not remember if I have assisted her in other matters but if

there are documents to show that I have assisted then I can
recall.28

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

xxx

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

xxx

xxx

xxx

xxx

xxx

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

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

Q. So you are not definite that this is the signature of Matilde vda
de Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
partition which you have made?

A. I am not familiar with the handwriting.

A. That is true.30

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

From the testimonies of these witnesses, the Court of Appeals allowed the
will to probate and disregard the requirement of three witnesses in case of
contested holographic will, citing the decision in Azaola vs. Singson,31ruling
that the requirement is merely directory and not mandatory.

A. I think this signature here it seems to be the signature of Mrs.

Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda
de Ramonal, can you tell the court whose signature is this?

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the
solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain these primordial ends. But
on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a
will.

A. Well, that is similar to that signature appearing in the project of

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

However, we cannot eliminate the possibility of a false document being

adjudged as the will of the testator, which is why if the holographic will is
contested, that law requires three witnesses to declare that the will was in
the handwriting of the deceased.

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

Matilde vda de Ramonal.
Q. Why do you say that?

The will was found not in the personal belongings of the deceased but with
one of the respondents, who kept it even before the death of the deceased.
In the testimony of Ms. Binanay, she revealed that the will was in her
possession as early as 1985, or five years before the death of the
deceased.

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

Q. How about this signature in item no. 4, can you tell the court
whose signature is this?

36

There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by
her during her lifetime. The only chance at comparison was during the
cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms.
Binanay to compare the documents which contained the signature of the
deceased with that of the holographic will and she is not a handwriting
expert. Even the former lawyer of the deceased expressed doubts as to the
authenticity of the signature in the holographic will.

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.

A visual examination of the holographic will convince us that the strokes

are different when compared with other documents written by the testator.
The signature of the testator in some of the disposition is not readable.
There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30,
1978,33 and the signatures in several documents such as the application
letter for pasture permit dated December 30, 1980, 34 and a letter dated
June 16, 1978,35 the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be certain
that ruling holographic will was in the handwriting by the deceased.

Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records
are ordered remanded to the court of origin with instructions to allow
petitioners to adduce evidence in support of their opposition to the probate
of the holographic will of the deceased Matilde Seo vda. de
Ramonal.1wphi1.nt

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.

No costs.

The holographic Will reads in full as follows:

My Last will and Testament

SO ORDERED.

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.

37

xxx xxx xxx

WHEREFORE, the petition to probate Exhibit "C" as the

holographic will of Natividad K. Kalaw is hereby denied.

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:

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."

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.

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
theoriginal 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.

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:

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

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.

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 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".

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

38

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:

SO ORDERED.

... 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
extendido 3(Emphasis ours).
G.R. No. L-20234

WHEREFORE, this Petition is hereby dismissed and the Decision of

respondent Judge, dated September 3, 1973, is hereby affirmed in toto. No
costs.

39

December 23, 1964

PAULA
DE
LA
CERNA,
ET
AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip
M.
Alo
and
Crispin
Nicolas Jumapao for respondents.

M.

Menchavez

for

del finado Bernabe de la Serna de los aos desde esta fecha" (Act
Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon the
death of Gervasia Rebaca on October 14, 1952, another petition for
the probate of the same will insofar as Gervasia was concerned
was filed on November 6, 1952, being Special Proceedings No.
1016-R of the same Court of First Instance of Cebu, but for failure
of the petitioner, Manuela R. Potot and her attorney, Manuel Potot
to appear, for the hearing of said petition, the case was dismissed
on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).

petitioners.

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

Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court
of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal
of an action for partition.

The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of
joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil
Code of the Philippines); but on appeal by the testamentary heir, the Court
of Appeals reversed, on the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive on the due
execution of the testament. Further, the Court of Appeals declared that:

The factual background appears in the following portion of the decision of

the Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna
and Gervasia Rebaca, executed a joint last will and testament in
the local dialect whereby they willed that "our two parcels of land
acquired during our marriage together with all improvements
thereon shall be given to Manuela Rebaca, our niece, whom we
have nurtured since childhood, because God did not give us any
child in our union, Manuela Rebaca being married to Nicolas Potot",
and that "while each of the testators is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned", the
said two parcels of land being covered by Tax No. 4676 and Tax No.
6677, both situated in sitio Bucao, barrio Lugo, municipality of
Borbon, province of Cebu. Bernabe dela Serna died on August 30,
1939, and the aforesaid will was submitted to probate by said
Gervasia and Manuela before the Court of First Instance of Cebu
which, after due publication as required by law and there being no
opposition, heard the evidence, and, by Order of October 31, 1939;
in Special Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado Bernabe
de la Serna con derecho por parte du su viuda superstite Gervasia
Rebaca y otra testadora al propio tiempo segun el Exhibit A de
gozar de los frutos de los terranos descritos en dicho documents; y
habido consideracion de la cuantia de dichos bienes, se decreta la
distribucion sumaria de los mismos en favor de la logataria
universal Manuela Rebaca de Potot previa prestacion por parte de
la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes

... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil
Code). prohibits the making of a will jointly by two or more persons
either for their reciprocal benefit or for the benefit of a third
person. However, this form of will has long been sanctioned by use,
and the same has continued to be used; and when, as in the
present case, one such joint last will and testament has been
admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done
in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein our
Supreme Court gave effect to the provisions of the joint will therein
mentioned, saying, "assuming that the joint will in question is
valid."
Whence this appeal by the heirs intestate of the deceased husband,
Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate,
entered in 1939 by the Court of First Instance of Cebu (when the testator,
Bernabe de la Cerna, died), has conclusive effect as to his last will and
testament despite the fact that even then the Civil Code already decreed
the invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error
thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the

40

probate court, nor the conclusive effect of its final decision, however
erroneous. A final judgment rendered on a petition for the probate of a will
is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re
Estates of Johnson, 39 Phil. 156); and public policy and sound practice
demand that at the risk of occasional errors judgment of courts should
become final at some definite date fixed by law. Interest rei publicae ut
finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in
2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).

It is unnecessary to emphasize that the fact that joint wills should be in

common usage could not make them valid when our Civil Codes
consistently invalidated them, because laws are only repealed by other
subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines
of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are

concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate
decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was correct.

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

RIZALINA
GABRIEL
vs.
HONORABLE
COURT
OF
SANTIAGO, respondents.

But the Court of Appeals should have taken into account also, to avoid
future misunderstanding, that the probate decree in 1989 could only affect
the share of the deceased husband, Bernabe de la Cerna. It could not
include the disposition of the share of the wife, Gervasia Rebaca, who was
then still alive, and over whose interest in the conjugal properties the
probate court acquired no jurisdiction, precisely because her estate could
not then be in issue. Be it remembered that prior to the new Civil Code, a
will could not be probated during the testator's lifetime.

GONZALES, petitioner,
APPEALS

and

LUTGARDA

Francisco D. Rilloraza, Jr. for petitioners.

Angel A. Sison for private respondent.

GUERRERO, J.:

It follows that the validity of the joint will, in so far as the estate of the wife
was concerned, must be, on her death, reexamined and adjudicated de
novo, since a joint will is considered a separate will of each testator. Thus
regarded, the holding of the court of First Instance of Cebu that the joint
will is one prohibited by law was correct as to the participation of the
deceased Gervasia Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that
explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which
reversed the decision of the Court of First Instance of Rizal dated
December 15, 1964 and allowed the probate of the last will and testament
of the deceased Isabel Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda
Santiago 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.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her
death to her heirs intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or unless she be
the only heir intestate of said Gervasia.

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

41

children, lived with the deceased at the latters residence prior an- d up to
the time of her death.

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 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

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:

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.

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:

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.

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;

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

42

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;

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.

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;

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. 7

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.

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 8 of private respondent thereon, We denied the petition by
Resolution on November 26, 1973, 9 the question raised being factual and
for insufficient showing that the findings of fact by respondent Court were
unsupported by substantial evidence.

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.

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 11 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.

Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the

aforesaid decision and such motion was opposed 4 by petitioner-appellant
Lutgarda Santiago. Thereafter. parties submitted their respective
Memoranda, 5 and on August 28, 1973, respondent Court, Former Special
First Division, by Resolution 6 denied the motion for reconsideration stating
that:

The 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.

43

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".

February 27; 1976, 69 SCRA 393), 13 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:

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.

... 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 ...

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.

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.

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.

Having laid down the above legal precepts as Our foundation, We now
proceed to consider petitioner's assignments of errors.

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.

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

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 (L27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202,

44

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 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).

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:

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.

(1) Any person not domiciled in 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.

(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.

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

45

addition to being competent under Articles 820 and 821 must also be a
credible witness under Article 805.

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).

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).

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.)

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).

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 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:

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

46

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.

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.

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.

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.

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

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

47

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."

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. "

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.

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.

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

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

48

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."

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.

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).

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

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

49

minor details; hence the contradictions in their testimony." (Lopez vs.

Liboro, 81 Phil. 429).

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 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

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

50

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.

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.

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 oppositorappellee 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 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.

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.

WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is

hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.

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

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