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CONSTANTINO C. ACAIN, petitioner, vs. HON.


Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents. G.R. No. 72706 October 27,
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No.
05744 promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special
Proceedings No, 591 ACEB and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents'
(petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh
Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special
Proceedings No. 591 ACEB No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals,
(Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition
for the probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters
testamentary, docketed as Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain
died leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion,
Quirina and Laura were instituted as heirs. The will allegedly executed by Nemesio Acain on February 17, 1960
was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submi'tted by petitioner without
objection raised by private respondents. The will contained provisions on burial rites, payment of debts, and the
appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I
earned jointly with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO
ACAIN Filipino, widower, of legal age and presently residing at 357-C Sanciangko Street, Cebu
City. In case my brother Segundo Acain pre-deceased me, all the money properties, lands, houses
there in Bantayan and here in Cebu City which constitute my share shall be given to me to his
children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores, Antonio and Jose, all
surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with
Constantino as the petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein
Virginia A. Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de
Acain filed a motion to dismiss on the following grounds for the petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the widow and the adopted daughter have been pretirited.
(Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the
Supreme Court a petition for certiorari and prohibition with preliminary injunction which was subsequently
referred to the Intermediate Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to
dismiss the petition for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review of
respondent Court's decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6,
1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents'
Memorandum was filed on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on
September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):
(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary
injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the
will sought to be probated and it cannot pass upon the intrinsic validity thereof before it is
admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition
mentioned in Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the
direct line," and does not apply to private respondents who are not compulsory heirs in the direct
line; their omission shall not annul the institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution
of a universal heir in the will would give the heir so instituted a share in the inheritance but there
is a definite distinct intention of the testator in the case at bar, explicitly expressed in his will.
This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp.
Proc. No. 591 ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall
annul the institution of heir; but the devisees and legacies shall be valid insofar as they are not;
If the omitted compulsory heirs should die before the testator, the institution shall he effectual,
without prejudice to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because
they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly
disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]).
Insofar as the widow is concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in the direct
line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez,
whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner,
pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied that she has totally omitted and preterited in the
will of the testator and that both adopted child and the widow were deprived of at least their legitime. Neither
can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally
adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire
inheritance including "la porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion"
Maniesa as cited in Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only
provisions which do not result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the
testator results in totally abrogating the will because the nullification of such institution of universal heirswithout any other testamentary disposition in the will-amounts to a declaration that nothing at all was written.
Carefully worded and in clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the whole property of the
deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling the
"Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943])
except that proper legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he
must have an interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a

claimant of the estate and an interested party is one who would be benefited by the estate such as an heir or
one who has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is
not the appointed executor, neither a devisee or a legatee there being no mention in the testamentary
disposition of any gift of an individual item of personal or real property he is called upon to receive (Article 782,
Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the
Civil Code as a person called to the succession either by the provision of a will or by operation of law. However,
intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will
left by the deceased and Special Proceedings No. 591 A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive
exercise of j judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587
[1985]). It is axiomatic that the remedies of certiorari and prohibition are not available where the petitioner has
the remedy of appeal or some other plain, speedy and adequate remedy in the course of law (DD Comendador
Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds
(Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is
that the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof,
the testator's testamentary capacity and the compliance with the requisites or solemnities prescribed by law.
The intrinsic validity of the will normally comes only after the Court has declared that the will has been duly
authenticated. Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or
efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra;
Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional circumstances, the probate court is not
powerless to do what the situation constrains it to do and pass upon certain provisions of the will (Nepomuceno
v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of
absolute preteriton The probate court acting on the motion held that the will in question was a complete nullity
and dismissed the petition without costs. On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case will
come up once again before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the practical considerations
that induce us to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was
grounded on petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the
evidence during the hearing held in connection with said motion. The Court upheld the probate court's order of
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the
validity of the provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on
its face the will appeared to have preterited the petitioner the respondent judge should have denied its probate
outright. Where circumstances demand that intrinsic validity of testamentary provisions be passed upon even
before the extrinsic validity of the will is resolved, the probate court should meet the issue. (Nepomuceno v.
Court of Appeals,supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of
the Regional Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the
proceedings; (2) he is merely a universal heir; and (3) the widow and the adopted daughter have been preterited
(Rollo, p. 158). It was denied by the trial court in an order dated January 21, 1985 for the reason that "the
grounds for the motion to dismiss are matters properly to be resolved after a hearing on the issues in the course
of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied by the
trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress when on its
face the will appears to be intrinsically void as petitioner and his brothers and sisters were instituted as
universal heirs coupled with the obvious fact that one of the private respondents had been preterited would
have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The

trial court could have denied its probate outright or could have passed upon the intrinsic validity of the
testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra;
Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private
Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to
resort to the more speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of
discretion, amounting to lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the Court harkens
to the rule that in the broader interests of justice, a petition for certiorari may be entertained, particularly where
appeal would not afford speedy and adequate relief. (Maninang Court of Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of
respondent Court of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are
hereby AFFIRMED.
Testate estate of the late VICENTE CAGRO. JESUSA CAGRO, petitioner-appellee, vs. PELAGIO CAGRO, ET
AL., oppositors-appellants. G.R. No. L-5826
April 29, 1953
This is an appeal interposed by the oppositors from a decision of the Court of First Instance of Samar, admitting
to probate the will allegedly executed by Vicente Cagro who died in Laoangan, Pambujan, Samar, on February
14, 1949.
The main objection insisted upon by the appellant in that the will is fatally defective, because its attestation
clause is not signed by the attesting witnesses. There is no question that the signatures of the three witnesses
to the will do not appear at the bottom of the attestation clause, although the page containing the same is
signed by the witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is 'a
memorandum of the facts attending the execution of the will' required by law to be made by the attesting
witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as
an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform
substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable,
because said signatures are in compliance with the legal mandate that the will be signed on the left-hand
margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be
admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question denied. So ordered with
costs against the petitioner and appellee.
COURT OF APPEALS, respondents. G.R. No. L-20234
December 23, 1964
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 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 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).
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:
... . 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 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).
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.
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.
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.
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.

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.
In the mater of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner-appellant, vs. ANA DE
LEON, opponent-appellee. G.R. No. 17714 May 31, 1922
The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was revoked by
The petitioner denies such revocation, while the contestant affirms the same by alleging that the testator
revoked his will by destroying it, and by executing another will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary requisites to
constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the destruction of a will animo
revocandiconstitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)lvvph1n+
From the evidence submitted in this case, it appears that the testator, shortly after the execution of the first will
in question, asked that the same be returned to him. The instrument was returned to the testator who ordered
his servant to tear the document. This was done in his presence and before a nurse who testified to this effect.
After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw
or change the provisions he had made in his first will. This fact is disclosed by the testator's own statements to
the witnesses Canto and the Mother Superior of the Hospital where he was confined.
The original will herein presented for probate having been destroyed with animo revocandi, cannot now be
probated as the will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased, vs. DIOSDADA
ALBERASTINE, petitioner-appellant. G.R. No. L-14322 February 25, 1960
This concerns the probate of a document which purports to be the last will and testament of one Petronila
Tampoy. After the petition was published in accordance with law and petitioner had presented oral and
documentaryevidence, the trial court denied the petition on the ground that the left hand margin of the first of
the will does not bear the thumbmark of the testatrix. Petitioner appealed from this ruling but the Court of
Appeals certified the case to us because it involves purely a question of law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a Bonigfacio Mioza que la leyera
el testamento Exhibito A y la expicara su contenido en su casa en al calle San Miguel, del municipio de
Argao, provincia de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio Mioza en presencia de
los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon Omboy, y despues de
conformarse con el contendido del testamento, ella rogo a Bonifacio Mioza, que escribiera su nombre al
pie del testamento, en la pagina segunda, y asi lo hizo Bonifacio Mioza, y despues ella estampo su
marca digital entra su nombre y apelido en presencia de todos y cada uno de los tres testigos
instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon Omboy y de Bonifacio Mioza, y despues,
Bonifacio Mioza firmo tambien al pie del todos y cada uno de lo tres testigos arriba nombrados. La
testadora asi como Bonifacio Mioza parte de la primera pagina del testamento qeu se halla compuesto
de dos paginas. Todos y cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Pea y Simeon Omboy, firmaron al pie de la clausula de atestiguamiento que esta escrita en la pagina
segunda del testamento y en la margen izquierda de la misma pagina 2 y de la pagina primera en
presencia de la testadora, de Bonifacio Mioza, del abogado Kintanar y de todos y cada uno de ellos. El
testamento fue otorgado por la testadora libre y expontaneament, sin haber sido amenazada, forzada o
intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la misma en pleno uso de sus
facultades mentales y disfrutando de buena salud. La testadore fallecio en su case en Argao en 22 de
febrero de 1957 (Vease certificado de defuncion Exhibito B). La heredera instituida en el testamento,

Carmen Alberastine, murio dos semanas despues que la testadora, o sea en 7 de Marzo de 1957,
dejando a su madre, la solicitante Diosdada Alberastine.
The above facts are not controverted, there being no opposition to the probate of the will. However, the trial
court denied the petition on the ground that the first page of the will does not bear the thumbmark of the
testatrix. Petitioner now prays that this ruling be set aside for the reason that, although the first page of the will
does not bear the thumbmark of the testatrix, the same however expresses her true intention to givethe
property to her whose claims remains undisputed. She wishes to emphasize that no one has filed any to the
opposition to the probate of the will and that while the first page does not bear the thumbmark of the testatrix,
the second however bears her thumbmark and both pages were signed by the three testimonial witnesses.
Moreover, despite the fact that the petition for probate is unoppossed, the three testimonial witnesses testified
and manifested to the court that the document expresses the true and voluntary will of the deceased.
This contention cannot be sustained as it runs counter to the express provision of the law. Thus, Section 618 of
Act 190, as amended, requires that the testator sign the will and each and every page thereof in the presence of
the witnesses, and that the latter sign the will and each and every page thereof in the presence of the testator
and of each other, which requirement should be expressed in the attestation clause. This requirement is
mandatory, for failure to comply with it is fatal to the validity of the will (Rodriguez vs. Alcala, 55 Phil., 150).
Thus, it has been held that "Statutes prescribing the formalities to be observed in the execution of wills are very
strictly construed. As stated in 40 Cyc., at page 1097, 'A will must be executed in accordance with the statutory
requirements; otherwise it is entirely void.' All these requirements stand as of equal importance and must be
observed, and courts cannot supply the defective execution of a will. No power or discretion is vested in them,
either to superadd other conditions or dispence with those enumerated in the statutes" (Uy Coque vs. Navas L.
Sioca, 43 Phil., 405, 407; See also Sao vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs.
Morata, 54 Phil., 481).
Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the testatrix on its
first page even if it bears the signature of the three instrumental witnesses, we cannot escape the conclusion
that the same fails to comply with the law and therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without pronouncement as to costs.
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC,
AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees. G.R. No. L26317 January 29, 1927
The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died
on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the
record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament
(Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First
Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by
Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of
La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable
C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of
April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation
of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of
the second will and testament executed by the said Miguel Mamuyac; (b) that the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of
the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties,
denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and
revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts
had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator
Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the
will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original
Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that
inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the
will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the
possession of father Miguel Mamuyac. The opponents have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased,

who was living in the house with him, when cross-examined by attorney for the opponents, testified that
the original Exhibit A could not be found. For the foregoing consideration and for the reason that the
original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the
probate of Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that the will in
question had been executed with all the formalities required by the law; that the same had been revoked and
cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not
estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was
accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any
evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to
prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must
either remain unproved of be inferred from evidence showing that after due search the original will cannot be
found. Where a will which cannot be found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by
the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac
and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a
will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the contestant to show that it has been
revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is
no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper
testimony that a will was executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L26063.)1
After a careful examination of the entire record, we are fully persuaded that the will presented for probate had
been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without
any finding as to costs, it is so ordered.
ILDEFONSO YAP, oppositor-appellee. G.R. No. L-12190 August 30, 1958
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas
Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition
for the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking
kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang

Sr. .............................................

Esguerra, 5 Bahagi

E. 2 Bahagi
Gan .........................................................

E. 2 Bahagi
Gan .........................................................

Alto ..........................................................

1 Bahagi

1 Bahagi
Alto .............................................................

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

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge,1 refused to probate
the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements
in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies
may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra,
her desire to make a will. She confided however that it would be useless if her husband discovered or knew
about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the document was entirely in her
handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the
strength of it, in the morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote,
signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece,
Felina Esguerra (daughter of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was
visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina
Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she
showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the
said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband,
asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it
to him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day
shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to
the toilet, opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several
years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she
was treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned
to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of
which happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was
surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the
Yap spouses. Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the
patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were
administered. Following the doctor's advice the patient stayed in bed, and did nothing the whole day, her
husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs.
Felicidad Esguerra Yap made no will, and could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were
these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would
not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses

were unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to
believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable
that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her
will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that
her purpose being to conceal the will from her husband she would carry it around, even to the hospital, in her
purse which could for one reason or another be opened by her husband; (e) if it is true that the husband
demanded the purse from Felina in the U.S.T. Hospital and that the will was there, it is hard to believe that he
returned it without destroying the will, the theory of the petitioner being precisely that the will was executed
behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not
and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his
witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them, were
presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The
oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the same
matters, because in our opinion the case should be decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms,
including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is
subject to no other form and may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for 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.
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 contested, at least three such
witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if
the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be
mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand.
However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert
witnesses, who after comparing the will with other writings or letters of the deceased, have come to the
conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court,
in view of such contradictory testimony may use its own visual sense, and decide in the face of the document,
whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are
not available. And then the only guaranty of 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 Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary
evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have
contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or
stolen4 an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who
shall subscribe it and require its identity to be established by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity
of the will has been proven he shall order that it be 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.
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.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme
Court of Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having
been torn from it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing
the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision
of the Civil Code (Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce
no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del
Codigo civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por
testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y
eficacia de esos testamentos, no basta la demostracion mas o menos cumplida de que cuando
se otorgaron se 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 . . . .
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.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting and signature.7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be
fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a
lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or
read such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of
Court for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this
controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary
wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills.
In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the
subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of
the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie.
And then their lies could be checked and exposed, their whereabouts and acts on the particular day, the
likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were
intimates or trusted friends of the testator they are not likely to end themselves to any fraudulent scheme to
distort his wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 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.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery
would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde
and other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be
testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of
a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly
saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors, because the
handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In
addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and
Primitivo Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its
execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the
will from her husband, why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for
instance, her husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the
evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to
measure up to that "clear and distinct" proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
LABRADOR, respondents-appellees. G.R. Nos. 83843-44 April 5, 1990
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 8102 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador died in the Municipality of
Iba, province of Zambales, where he was residing, leaving behind a parcel of land designated as Lot No. 1916
under Original 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.

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.
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 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.
After both parties had rested and submitted their respective evidence, the trial court rendered a joint decision
dated February 28, 1985, allowing the probate of the holographic will and declaring null and void the Deed of
Absolute sale. The court a quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption price for the property paid by
the plaintiff-petitioner Sagrado with legal interest thereon from December 20, 1976, when it was paid to
vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March 10, 1988 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.
Petitioners now assign the following errors committed by respondent court, to wit:
The alleged undated holographic will written in Ilocano translated into English, is quoted as follows:







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.
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.
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.

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;
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.
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
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
made this writing (WILL), and he is, MELECIO LABRADOR y RALUTIN (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although the date is not in its
usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with Article 810.1wphi1 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)
The law does not specify a particular location where the date should be placed in the will. The only requirements
are that the date be in the will itself and executed in the hand of the testator. These requirements are present in
the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and his 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."
Respondents are in error. The intention to show 17 March 1968 as the date of the execution of the will is plain
from the tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was not an
agreement but a unilateral act of Melecio Labrador who plainly knew that what he was executing was a will. The
act of partitioning and the declaration that such partitioning as the testator's instruction or decision to be
followed reveal that Melecio Labrador was fully aware of the nature of the estate property to be disposed of and
of the character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of 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.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is hereby REVERSED. The
holographic will of Melecio Labrador is APPROVED and ALLOWED probate. The private respondents are directed
to REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00). SO ORDERED.
29, 1988
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the
present one and involving the same parties had already been decided by us in the past. In G.R. No. L30479, 1which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the
petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of

the will in question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of
Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private
respondents presently, Panfilo and Felino both surnamed Maloto. The trial court dismissed the petition on April
30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by
certiorari. 2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the
case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix.
Adriana Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for
reconsideration of the adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina MalotoCasiano and Constancio, Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing that
the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963
an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court of
First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino executed
an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the
estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the
end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the
late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated
January 3,1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found
the testament, the original copy, while he was going through some materials inside the cabinet drawer formerly
used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo
on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they
received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives
devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed
in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and for
the allowance of the will When the trial court denied their motion, the petitioner came to us by way of a petition
for certiorari and mandamus assailing the orders of the trial court . 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate
vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or
papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the
testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent court
stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the document was not in the two safes in
Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in
the latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for
the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of
the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the
testator himself, or by some other person in his presence, and by his express direction. If burned,
torn cancelled, or obliterated by some other person, without the express direction of the testator,
the will may still be established, and the estate distributed in accordance therewith, if its

contents, and due execution, and the fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an
effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not
imperative that the physical destruction be done by the testator himself. It may be performed by another person
but under the express direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a state of mind, yet
that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act
of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to show compliance with these
requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to
have been done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where
the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in
the trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two
witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was
the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information
that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is
double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is not denied
legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to its
very foundations ...." 4
The private respondents in their bid for the dismissal of the present action for probate instituted by the
petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought about
by the petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and
their prayer to annul the previous proceedings therein and to allow the last will and testament of the late
Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a
subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the
former judgment is a judgment on the merits; and (4) there is, between the first and the second action, Identity
of parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will
is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to
be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment
on the merits of the action for probate. This is understandably so because the trial court, in the intestate
proceeding, was without jurisdiction to rule on the probate of the contested will . 6 After all, an action for
probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution
and validity, something which can not be properly done in an intestate settlement of estate proceeding which is
predicated on the assumption that the decedent left no will. Thus, there is likewise no Identity between the
cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be
remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of
the private respondents on this score can not be sustained.
One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major
and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion
of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties
have been acquired after the execution of the will on January 3,1940." 7 Suffice it to state here that as these
additional matters raised by the private respondents are extraneous to this special proceeding, they could only
be appropriately taken up after the will has been duly probated and a certificate of its allowance issued.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and
the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the private respondents.
AUREA MATIAS, petitioner, vs. HON. PRIMITIVO L. GONZALEZ, ETC., ET AL., respondents. G.R. No. L10907 June 29, 1957
Petitioner Aurea Matias seeks a writ of certiorari to annul certain orders of Hon. Primitivo L. Gonzales, as Judge of
the Court of First Instance of Cavite, in connection with Special Proceedings No. 5213 of said court, entitled
"Testate Estate of the Deceased Gabina Raquel."
On May 15, 1952, Aurea Matias initiated said special proceedings with a petition for the probate of a document
purporting to be the last will and testament of her aunt, Gabina Raquel, who died single on May 8, 1952, at the
age of 92 years. The heir to the entire estate of the deceased except the properties bequeathed to her other
niece and nephews, namely, Victorina Salud, Santiago Salud, Policarpio Salud, Santos Matias and Rafael Matias
is, pursuant to said instrument, Aurea Matias, likewise, appointed therein as executrix thereof, without bond.
Basilia Salud, a first cousin of the deceased, opposed the probate of her alleged will, and, after appropriate
proceedings, the court, presided over by respondent Judge, issued an order, dated February 8, 1956, sustaining
said opposition and denying the petition for probate. Subsequently, Aurea Matias brought the matter on appeal
to this Court (G.R. No. L-10751), where it is now pending decision.
Meanwhile, or on February 17, 1956, Basilia Salud moved for the dismissal of Horacio Rodriguez, as special
administrator of the estate of the deceased, and the appointment, in his stead of Ramon Plata. The motion was
set for hearing on February 23, 1956, on which date the court postponed the hearing to February 27, 1956.
Although notified of this order, Rodriguez did not appear on the date last mentioned. Instead, he filed an urgent
motion praying for additional time within which to answer the charges preferred against him by Basilia Salud
and for another postponement of said hearing. This motion was not granted, and Basilia Salud introduced
evidence in support of said charges, whereupon respondent Judge by an order, dated February 27, 1956, found
Rodriguez guilty of abuse of authority and gross negligence, and, accordingly, relieved him as special
administrator of the estate of the deceased and appointed Basilia Salud as special administratrix thereof, to "be
assisted and advised by her niece, Miss Victorina Salud," who "shall always act as aide, interpreter and adviser
of Basilia Salud." Said order, likewise, provided that "Basilia Salud shall be helped by Mr. Ramon Plata . . . who is
hereby appointed as co-administrator."
On March 8, 1956, Aurea Matins asked that said order of February 27, 1956, be set aside and that she be
appointed special co-administratrix, jointly with Horacio Rodriguez, upon the ground that Basilia Salud is over
eighty (80) years of age, totally blind and physically incapacitated to perform the duties of said office, and that
said movant is the universal heiress of the deceased and the person appointed by the latter as executrix of her
alleged will. This motion was denied in an order dated March 10, 1956, which maintained "the appointment of
the three above named persons" Basilia Salud, Ramon Plata and Victorina Salud "for the management of
the estate of the late Gabina Raquel pending final decision on the probate of the alleged will of said decedent."
However, on March 17, 1956, Basilia Salud tendered her resignation as special administratrix by reason of
physical disability, due to old age, and recommended the appointment, in her place, of Victorina Salud. Before
any action could be taken thereon, or on March 21, 1956, Aurea Matias sought a reconsideration of said order of
March 10, 1956. Moreover, on March 24, 1956, she expressed her conformity to said resignation, but objected to
the appointment, in lieu of Basilia Salud, of Victorina Salud, on account of her antagonism to said Aurea Matias
she (Victorina Salud) having been the principal and most interested witness for the opposition to the probate
of the alleged will of the deceased and proposed that the administration of her estate be entrusted to the
Philippine National Bank, the Monte de Piedad, the Bank of the Philippine Islands, or any other similar institution
authorized by law therefor, should the court be reluctant to appoint the movant as special administratrix of said
estate. This motion for reconsideration was denied on March 26, 1956.
Shortly afterwards, or on June 18, 1956, respondents Ramon Plata and Victorina Salud requested authority to
collect the rents due, or which may be due, to the estate of the deceased and to collect all the produce of her
lands, which was granted on June 23, 1956. On June 27, 1956, said respondents filed another motion praying for
permission to sell the palay of the deceased then deposited in different rice mills in the province of Cavite, which
respondent judge granted on June 10, 1956. Later on, or on July 10, 1956, petitioner instituted the present action
against Judge Gonzales, and Victorina Salud and Ramon Plata, for the purpose of annulling the above mentioned
orders of respondent Judge, upon the ground that the same had been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
In support of this pretense, it is argued that petitioner should have preference in the choice of special
administratrix of the estate of the decedent, she (petitioner) being the universal heiress to said estate and, the
executrix appointed in the alleged will of the deceased, that until its final disallowance which has not, as yet,
taken place she has a special interest in said estate, which must be protected by giving representation thereto in

the management of said estate; that, apart from denying her any such representation, the management was
given to persons partial to her main opponent, namely, Basilia Salud, inasmuch as Victorina Salud is allied to her
and Ramon Plata is a very close friend of one of her (Basilia Salud's) attorneys; that Basilia Salud was made
special administratrix despite her obvious unfitness for said office, she being over eighty (80) years of age and
blind; that said disability is borne out by the fact that on March 17, 1956, Basilia Salud resigned as special
administratrix upon such ground; that the Rules of Court do not permit the appointment of more than one
special administrator; that Horacio Rodriguez was removed without giving petitioner a chance to be heard in
connection therewith; and that Ramon Plata and Victorina Salud were authorized to collect the rents due to the
deceased and the produce of her lands, as well to sell her palay, without previous notice to the petitioner herein.
Upon the other hand, respondents maintain that respondent Judge acted with the scope of his jurisdiction and
without any abuse of discretion; that petitioner can not validly claim any special interest in the estate of the
deceased, because the probate of the alleged will and testament of the latter upon which petitioner relies
has been denied; that Horacio Rodriguez was duly notified of the proceedings for his removal; and that Victorina
Salud and Ramon Plata have not done anything that would warrant their removal.
Upon a review of the record, we find ourselves unable to sanction fully the acts of respondent Judge, for the
following reasons:
1. Although Horacio Rodriguez had notice of the hearing of the motion for his removal, dated February 17, 1956,
the record shows that petitioner herein received copy of said motion of February 24, 1956, or the date after that
set for the hearing thereof. Again, notice of the order of respondent Judge, dated February 23, 1956, postponing
said hearing to February 27, 1956, was not served on petitioner herein.
2. In her motion of February 17, 1956, Basilia Salud prayed for the dismissal of Horacio Rodriguez, and the
appointment of Ramon Plata, as special administrator of said estate. Petitioner had, therefore, no notice that her
main opponent, Basilia Salud, and the latter's principal witness, Victorina Salud, would be considered for the
management of said. As a consequence, said petitioner had no opportunity to object to the appointment of
Basilia Salud as special administratrix, and of Victorina Salud, as her assistant and adviser, and the order of
February 27, 1956, to this effect, denied due process to said petitioner.
3. Said order was issued with evident knowledge of the physical disability of Basilia Salud. Otherwise respondent
Judge would not have directed that she "be assisted and advised by her niece Victorina Salud," and that the
latter "shall always act as aide, interpreter and adviser of Basilia Salud."
4. Thus, respondent Judge, in effect, appointed three (3) special administrators Basilia Salud, Victorina Salud
and Ramon Plata. Indeed, in the order of March 10, 1956, respondent Judge maintained "the appointment of the
three (3) above-named persons for the management of the estate of the late Gabina Raquel."
5. Soon after the institution of said Special Proceedings No. 5213, an issue arose between Aurea Matias and
Basilia Salud regarding the person to be appointed special administrator of the estate of the deceased. The
former proposed Horacio Rodriguez, whereas the latter urged the appointment of Victorina Salud. By an order
dated August 11, 1952, the Court, then presided over by Hon. Jose Bernabe, Judge, decided the matter in favor
of Horacio Rodriguez and against Victorina Salud, upon the ground that, unlike the latter, who, as a pharmacist
and employee in the Santa Isabel Hospital, resides In the City of Manila, the former, a practicing lawyer and a
former public prosecutor, and later, mayor of the City of Cavite, is a resident thereof. In other words, the order of
resident thereof. In other words, the order of respondent Judge of February 27, 1956, removing Rodriguez and
appointing Victorina Salud to the management of the estate, amounted to a reversal of the aforementioned
order of Judge Bernabe of August 11, 1952.
6. Although the probate of the alleged will and testament of Gabina Raquel was denied by respondent Judge, the
order to this effect is not, as yet, final and executory. It is pending review on appeal taken by Aurea Matias. The
probate of said alleged will being still within realm of legal possibility, Aurea Matias has as the universal heir
and executrix designated in said instrument a special interest to protect during the pendency of said appeal.
Thus, in the case of Roxas vs. Pecson* (46 Off. Gaz., 2058), this Court held that a widow, designated as executrix
in the alleged will and testament of her deceased husband, the probate of which had denied in an order pending
appeal, "has . . . the same beneficial interest after the decision of the court disapproving the will, which is now
pending appeal, because the decision is not yet final and may be reversed by the appellate court."
7. The record shows that there are, at least two (2) factions among the heirs of the deceased, namely, one,
represented by the petitioner, and another, to which Basilia Salud and Victorina Salud belong. Inasmuch as the
lower court had deemed it best to appoint more than one special administrator, justice and equity demands that
both factions be represented in the management of the estate of the deceased.
The rule, laid down in Roxas vs. Pecson (supra), to the effect that "only one special administrator may be
appointed to administrator temporarily" the estate of the deceased, must be considered in the light of the facts
obtaining in said case. The lower court appointed therein one special administrator for some properties forming

part of said estate, and a special administratrix for other properties thereof. Thus, there were two (2) separate
and independent special administrators. In the case at bar there is only one (1) special administration, the
powers of which shall be exercised jointly by two special co-administrators. In short, the Roxas case is not
squarely in point. Moreover, there are authorities in support of the power of courts to appoint several special coadministrators (Lewis vs. Logdan, 87 A. 750; Harrison vs. Clark, 52 A. 514; In re Wilson's Estate, 61 N.Y.S. 2d., 49;
Davenport vs. Davenport, 60 A. 379).
Wherefore, the orders complained of are hereby annulled and set aside. The lower court should re-hear the
matter of removal of Horacio Rodriguez and appointment of special administrators, after due notice to all parties
concerned, for action in conformity with the views expressed herein, with costs against respondents Victorina
Salud and Ramon Plata. It is so ordered.
In the matter of the estate of Tomas Rodriguez, deceased. MANUEL TORRES, special administrator,
and LUZ LOPEZ DE BUENO, heir, appellee, vs. MARGARITA LOPEZ, opponent-appellant. G.R. No. L-25966
November 1, 1926
This appeal involves a controversy over one-half of the estate of Tomas Rodriguez, decedent. The appellant,
Margarita Lopez, claims said half by the intestate succession as next of kin and nearest heir; while the appellee,
Luz Lopez de Bueno, claims the same by accredition and in the character of universal heir the will of the
decedent. The trial court decided the point of controversy in favor of Luz Lopez de Bueno, and Margariat Lopez
The facts necessary to an understanding of the case are these: On January 3, 1924, Tomas Rodriguez executed
his last will and testament, in the second clause of which he declared:
I institute as the only and universal heirs to all my property, my cousin Vicente F. Lopez and his daughter
Luz Lopez de Bueno.
Prior to the time of the execution of this will the testator, Tomas Rodriguez, had been judicially declared
incapable of taking care of himself and had been placed under the care of his cousin Vicente F. Lopez, as
guardian. On January 7, 1924, or only four days after the will above-mentioned was made, Vicente F. Lopez died;
and the testator, Tomas Rodriguez, died on February 25, 1924, thereafter. At the time the will was made Vicente
F. Lopez had not presented his final accounts as guardian, and no such accounts had been presented by him at
the time of his death. Margariat Lopez was a cousin and nearest relative of the decedent. The will referred to,
and after having been contested, has been admitted to probate by judicial determination (Torres and Lopez de
Bueno vs. Lopez, 48 Phil., 772).
Our discussion of the legal problem presented should begin with article 753 of the Civil Code which in effect
declares that, with certain exceptions in favor of near relatives, no testamentary provision shall be valid when
made by a ward in favor of his guardian before the final accounts of the latter have been approved. This
provision is of undoubted application to the situation before us; and the provision made in the will of Tomas
Rodriguez in favor of Vicente F. Lopez was not any general incapacity on his part, but a special incapacity due to
the accidental relation of guardian and ward existing between the parties.
We now pass to article 982 of the Civil Code, defining the right of accretion. It is there declared, in effect, that
accretion take place in a testamentary succession, first when the two or more persons are called to the same
inheritance or the same portion thereof without special designation of shares; and secondly, when one of the
persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it. In the
case before us we have a will calling Vicente F. Lopez and his daughter, Luz Lopez de Bueno, to the same
inheritance without special designation of shares. In addition to this, one of the persons named as heir has
predeceased the testator, this person being also disqualified to receive the estate even if he had been alive at
the time of the testator's death. This article (982) is therefore also of exact application to the case in hand; and
its effect is to give to the survivor, Luz Lopez de Bueno, not only the undivided half which she would have
received in conjunction with her father if he had been alive and qualified to take, but also the half which
pertained to him. There was no error whatever, therefore, in the order of the trial court declaring Luz Lopez de
Bueno entitled to the whole estate.
The argument in favor of the appellant supposes that there has supervened a partial intestacy with respect to
the half of the estate which was intended for Vicente F. Lopez and that this half has descended to the appellant,
Margarita Lopez, as next of kin and sole heir at law of the decedent. In this connection attention is directed to
article 764 of the Civil Code wherein it is declared, among other things, that a will may be valid even though the
person instituted as heir is disqualified to inherit. Our attention is next invited to article 912 wherein it is
declared, among other things, that legal succession takes place if the heir dies before the testator and also when
the heir instituted is disqualified to succeed. Upon these provisions an argument is planted conducting to the
conclusion that the will of Tomas Rodriguez was valid, notwithstanding the fact that one of the individuals named
as heirs in the will was disqualified to take, and that as a consequence Margarita Lopez s entitled to inherit the
share of said disqualified heir.

We are the opinion that this contention is untenable and that the appellee clearly has the better right. In playing
the provisions of the Code it is the duty of the court to harmonize its provisions as far as possible, giving due
effect to all; and in case of conflict between two provisions the more general is to be considered as being limited
by the more specific. As between articles 912 and 983, it is obvious that the former is the more general of the
two, dealing, as it does, with the general topic of intestate succession while the latter is more specific, defining
the particular conditions under which accretion takes place. In case of conflict, therefore, the provisions of the
former article must be considered limited by the latter. Indeed, in subsection 3 of article 912 the provision with
respect to intestate succession is expressly subordinated to article 983 by the expression "and (if) there is no
right of accretion." It is true that the same express qualification is not found in subsection 4 of article 912, yet it
must be so understood, in view of the rule of interpretation above referred to, by which the more specific is held
to control the general. Besides, this interpretation supplies the only possible means of harmonizing the two
provisions. In addition to this, article 986 of the Civil Code affords independent proof that intestate succession to
a vacant portion can only occur when accretion is impossible.
The attorneys for the appellant direct attention to the fact that, under paragraph 4 of article 912, intestate
succession occurs when the heir instituted is disqualified to succeed (incapaz de suceder), while, under the last
provision in paragraph 2 of article 982, accretion occurs when one of the persons called to inherit under the will
is disqualified to receive the inheritance (incapaz de recibirla). A distinction is then drawn between incapacity to
succeed and incapacity to take, and it is contended that the disability of Vicente F. Lopez was such as to bring
the case under article 912 rather than 982. We are of the opinion that the case cannot be made to turn upon so
refined an interpretation of the language of the Code, and at any rate the disability to which Vicente F. Lopez
was subject was not a general disability to succeed but an accidental incapacity to receive the legacy, a
consideration which makes a case for accretion rather than for intestate succession.
The opinions of the commentators, so far as they have expressed themselves on the subject, tend to the
conclusion that the right of accretion with regard to portions of an inheritance left vacant by the death or
disqualification of one of the heirs or his renunciation of the inheritance is governed by article 912, without being
limited, to the extent supposed in appellant's brief, by provisions of the Code relative to intestate succession
(Manresa, Comentarios al Codigo Civil Espaol, 4th ed., vol. VII, pp. 310, 311; id., 34; 13 Mucius Scaevola, pp.
372, 373, 285-287; 16 Mucius Scaevola, 186). Says Escriche: "It is to be understood that one of the coheirs or
colegatees fails if nonexistent at the time of the making of the will, or he renounces the inheritance or legacy, if
he dies before the testator, if the condition be not fulfilled, or if he becomes otherwise incapacitated. . . .
(Diccionario de Legislacion y Jurisprudencia, vol. I, p. 225.)lawphil.net
In conclusion it may be worth observing that there has always existed both in the civil and in the common law a
certain legal intendment, amounting to a mild presumption, against partial intestacy. In Roman law, as is well
known, partial testacy systems a presumption against it, a presumption which has its basis in the supposed
intention of the testator.
The judgment appealed from will be affirmed, and it is so ordered, with costs against the appellant.

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitionerappellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants. G.R. No. L-2538 September 21,
This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and
testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants
brought the case on appeal to this Court for the reason that the value of the properties involved exceeds
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving
any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein
petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and
Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of
the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another
executed on June 20, 1939. (Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was
docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors,
the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another
petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special
proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on
three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will
has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But
before the second petition could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible
because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result,
petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed
an opposition based on the same grounds as those contained in their former opposition. Then, the case was set
for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early
part of this decision. From this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner voluntarily and deliberately
frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable
her to obtain the probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of
Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands"
and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in
the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo
VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the
decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that
the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to
enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain
facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an
effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically
defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner
with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022,
now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in
these proceedings which are entirely new and distinct and completely independent from the other is improper
and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are
merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel,
contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this contention. There is indeed no
evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of
the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture
drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an
urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the
character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency
of evidence, the record discloses that this failure has been explained by petitioner when she informed the court
that she was unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is
satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the
former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been
explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is
true or not is also for this Court to determine. It is likewise within the province and function of the court in the
former case. And the unfairness of this imputation becomes more glaring when we stock of the developments
that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and
character of the petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on
February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however,
upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over
the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered
because of the strong opposition of the oppositors who contended that he will had not been executed as
required by law. After the evidence of both parties had been presented, the oppositors filed an extensive
memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of
this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition
in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily
acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition
for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was
clear and bade her to take the only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But
then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for
reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the
will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed
their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will,
their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished.
But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to
impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the
intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors
imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which
would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance
of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his
universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the
intestacy of her husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which
was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is
valid and still has the effect of nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval,
(41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case.
Hence, the doctrine is that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed
impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts
are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore,
is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the
present case.
A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason
that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as
to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the
soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is
archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain
that said ruling is no longer controlling but merely represents the point of view of the minority and should,
therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which
governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the
majority view in the United States. A long line of authorities is cited in support of this contention. And these
authorities hold the view, that "an express revocation is immediately effective upon the execution of the
subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief .
While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears
to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in
line with the assertion that is now the prevailing view in the United States. In the search we have made of
American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the

peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the
impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in
the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision
Published in 1948, we found the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of wills:
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which permit the
revocation of a will by another writing provide that to be effective as a revocation, the writing must be
executed with the same formalities which are required to be observed in the execution of a will.
Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing
fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a
will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a
written instrument subsequently prepared but not executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid because
of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will.
Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a
defectively executed will or codicil, even though the latter contains a clause expressly revoking the
former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will.
Similarly where the statute provides that a will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the execution of wills, a defectively executed will
does not revoke a prior will, since it cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to
pass only personally does not affect dispositions of real estate made by a former will, even though it may
expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with
the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123,
there appear many authorities on the "application of rules where second will is invalid", among which a typical
one is the following:
It is universally agreed that where the second will is invalid on account of not being executed in
accordance with the provisions of the statute, or where the testator who has not sufficient mental
capacity to make a will or the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs.
Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated.
They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for
abondoning it as now suggested by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will,
codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of
wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning
of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the
effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be
given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors
contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause
contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will
submitted by petitioner for probate in these proceedings is only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918
will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only
evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they remained in his possession until he executed his
second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was
asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files
of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the
revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein

petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may
likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the
possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will
was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the
testator deemed it wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there
is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be
inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the
execution of the second will, which revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent
will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will
can still be admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is usually applied where the testator
cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to
make a new testamentary disposition as a substitute for the old, and the new disposition is not made or,
if made, fails of effect for same reason. The doctrine is n limited to the existence of some other
document, however, and has been applied where a will was destroyed as a consequence of a mistake of
law. . . . (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with the making of another will so
as fairly to raise the inference that the testator meant the revocation of the old to depend upon the
efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent
upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232,
This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon
whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions,
and hence prevents the revocation of the original will. But a mere intent to make at some time a will in
the place of that destroyed will not render the destruction conditional. It must appear that the revocation
is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)
We hold therefore, that even in the supposition that the destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939
has been validly executed and would be given due effect. The theory on which this principle is predicated is that
the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on
two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his
intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of
the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and
Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only
instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient
to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but
placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the
express desire and instruction of the testator, The testimony of these witnesses shows that the will had been
executed in the manner required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.