FIRST DIVISION

ANTONIO B. BALTAZAR,
SEBASTIAN M. BALTAZAR,
ANTONIO L. MANGALINDAN,
ROSIE M. MATEO,
NENITA A. PACHECO,
VIRGILIO REGALA, JR.,
and RAFAEL TITCO,
Petitioners,
- versus -

G.R. No. 174489

Present:
CORONA, C.J., Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR., JJ.

LORENZO LAXA,
Promulgated:
Respondent.
April 11, 2012
x------------------------------------------------------------------x

DECISION
DEL CASTILLO, J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to
distribute his estate in the manner provided in his will so long as it is legally tenable.[1]
Before us is a Petition for Review on Certiorari[2] of the June 15, 2006
Decision[3] of the Court of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the
September 30, 2003 Decision[4] of the Regional Trial Court (RTC), Branch 52, Guagua,
Pampanga in Special Proceedings No. G-1186. The assailed CA Decision granted the
petition for probate of the notarial will of Paciencia Regala (Paciencia), to wit:
WHEREFORE, premises considered, finding the appeal to be
impressed with merit, the decision in SP. PROC. NO. G-1186 dated 30
September 2003, is hereby SET ASIDE and a new one entered GRANTING
the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.[5]

Also assailed herein is the August 31, 2006 CA Resolution [6] which denied the
Motion for Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the
Decision of the RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament
entitled Tauli Nang Bilin o Testamento Miss Paciencia Regala[7] (Will) in the Pampango
dialect on September 13, 1981. The Will, executed in the house of retired Judge
Ernestino G. Limpin (Judge Limpin), was read to Paciencia twice. After which,
Paciencia expressed in the presence of the instrumental witnesses that the document is
her last will and testament. She thereafter affixed her signature at the end of the said
document on page 3[8] and then on the left margin of pages 1, 2 and 4 thereof.[9]
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin),
Francisco Garcia (Francisco) and Faustino R. Mercado (Faustino). The three attested to
the Wills due execution by affixing their signatures below its attestation clause [10] and on
the left margin of pages 1, 2 and 4 thereof, [11] in the presence of Paciencia and of one
another and of Judge Limpin who acted as notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children
Luna Lorella Laxa and Katherine Ross Laxa, thus:
xxxx
Fourth - In consideration of their valuable services to me since then up
to the present by the spouses LORENZO LAXA and CORAZON F. LAXA, I
hereby BEQUEATH, CONVEY and GIVE all my properties enumerated in
parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F.
LAXA and their children, LUNA LORELLA LAXA and KATHERINE
LAXA, and the spouses Lorenzo R. Laxa and Corazon F. Laxa both of legal
age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan], Pampanga
and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who

are still not of legal age and living with their parents who would decide to
bequeath since they are the children of the spouses;
xxxx
[Sixth] - Should other properties of mine may be discovered aside from
the properties mentioned in this last will and testament, I am also bequeathing
and giving the same to the spouses Lorenzo R. Laxa and Corazon F. Laxa and
their two children and I also command them to offer masses yearly for the
repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala and
their spouses and with respect to the fishpond situated at San Antonio, I
likewise command to fulfill the wishes of D[]a Nicomeda Regala in
accordance with her testament as stated in my testament. x x x[12]

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is

Paciencias nephew whom she treated as her own son. Conversely, Lorenzo came to
know and treated Paciencia as his own mother.[13] Paciencia lived with Lorenzos family
in Sasmuan, Pampanga and it was she who raised and cared for Lorenzo since his
birth. Six days after the execution of the Will or on September 19, 1981, Paciencia left for
the United States of America (USA). There, she resided with Lorenzo and his family
until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.
More than four years after the death of Paciencia or on April 27, 2000, Lorenzo
filed a petition[14] with the RTC of Guagua, Pampanga for the probate of the Will of
Paciencia and for the issuance of Letters of Administration in his favor, docketed as
Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued
an Order on June 13, 2000[15] allowing Lorenzo to present evidence on June 22, 2000. On
said date, Dra. Limpin testified that she was one of the instrumental witnesses in the
execution of the last will and testament of Paciencia on September 13, 1981.[16] The Will
was executed in her fathers (Judge Limpin) home office, in her presence and of two other
witnesses, Francisco and Faustino.[17] Dra. Limpin positively identified the Will and her
signatures on all its four pages.[18] She likewise positively identified the signature of her
father appearing thereon.[19] Questioned by the prosecutor regarding Judge Limpins

present mental fitness, Dra. Limpin testified that her father had a stroke in 1991 and had
to undergo brain surgery.[20] The judge can walk but can no longer talk and remember her
name. Because of this, Dra. Limpin stated that her father can no longer testify in court.[21]
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio)
filed an opposition[22] to Lorenzos petition. Antonio averred that the properties subject of
Paciencias Will belong to Nicomeda Regala Mangalindan, his predecessor-in-interest;
hence, Paciencia had no right to bequeath them to Lorenzo.[23]
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners
Sebastian M. Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael
Titco, Rosie M. Mateo (Rosie) and Antonio L. Mangalindan filed a Supplemental
Opposition[24] contending that Paciencias Will was null and void because ownership of
the properties had not been transferred and/or titled to Paciencia before her death
pursuant to Article 1049, paragraph 3 of the Civil Code. [25] Petitioners also opposed the
issuance of Letters of Administration in Lorenzos favor arguing that Lorenzo was
disqualified to be appointed as such, he being a citizen and resident of the USA.
[26]
Petitioners prayed that Letters of Administration be instead issued in favor of Antonio.
[27]

Later still on September 26, 2000, petitioners filed an Amended

Opposition[28] asking the RTC to deny the probate of Paciencias Will on the following
grounds: the Will was not executed and attested to in accordance with the requirements of
the law; that Paciencia was mentally incapable to make a Will at the time of its execution;
that she was forced to execute the Will under duress or influence of fear or threats; that
the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; that the signature of
Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be
her
Will. Simultaneously,
petitioners
filed
an
Opposition
and
[29]
Recommendation reiterating their opposition to the appointment of Lorenzo as
administrator of the properties and requesting for the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order [30] denying the requests of both
Lorenzo and Antonio to be appointed administrator since the former is a citizen and

resident of the USAwhile the latters claim as a co-owner of the properties subject of the
Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra.
Limpin was recalled for cross-examination by the petitioners. She testified as to the age
of her father at the time the latter notarized the Will of Paciencia; the living arrangements
of Paciencia at the time of the execution of the Will; and the lack of photographs when
the event took place. [31]
Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the
witness stand. Monico, son of Faustino, testified on his fathers condition. According to
him his father can no longer talk and express himself due to brain damage. A medical
certificate was presented to the court to support this allegation. [32]
For his part, Lorenzo testified that: from 1944 until his departure for the USA in
April 1980, he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in
1981 Paciencia went to the USA and lived with him and his family until her death in
January 1996; the relationship between him and Paciencia was like that of a mother and
child since Paciencia took care of him since birth and took him in as an adopted son;
Paciencia was a spinster without children, and without brothers and sisters; at the time of
Paciencias death, she did not suffer from any mental disorder and was of sound mind,
was not blind, deaf or mute; the Will was in the custody of Judge Limpin and was only
given to him after Paciencias death through Faustino; and he was already residing in the
USA when the Will was executed.[33] Lorenzo positively identified the signature of
Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in her transactions.
[34]
Further, Lorenzo belied and denied having used force, intimidation, violence, coercion
or trickery upon Paciencia to execute the Will as he was not in the Philippines when the
same was executed.[35] On cross-examination, Lorenzo clarified that Paciencia informed
him about the Will shortly after her arrival in the USA but that he saw a copy of the Will
only after her death.[36]
As to Francisco, he could no longer be presented in court as he already died on
May 21, 2000.

For petitioners, Rosie testified that her mother and Paciencia were first cousins.
She claimed to have helped in the household chores in the house of Paciencia thereby
allowing her to stay therein from morning until evening and that during the period of her
service in the said household, Lorenzos wife and his children were staying in the same
house.[38] She served in the said household from 1980 until Paciencias departure for
the USA on September 19, 1981.[39]
[37]

On September 13, 1981, Rosie claimed that she saw Faustino bring something for
Paciencia to sign at the latters house.[40] Rosie admitted, though, that she did not see what
that something was as same was placed inside an envelope. [41] However, she remembered
Paciencia instructing Faustino to first look for money before she signs them. [42] A few
days after or on September 16, 1981, Paciencia went to the house of Antonios mother and
brought with her the said envelope.[43] Upon going home, however, the envelope was no
longer with Paciencia.[44]Rosie further testified that Paciencia was referred to
as magulyan or forgetful because she would sometimes leave her wallet in the kitchen
then start looking for it moments later.[45] On cross examination, it was established that
Rosie was neither a doctor nor a psychiatrist, that her conclusion that Paciencia
was magulyan was based on her personal assessment, [46] and that it was Antonio who
requested her to testify in court.[47]
In his direct examination, Antonio stated that Paciencia was his aunt. [48] He
identified the Will and testified that he had seen the said document before because
Paciencia brought the same to his mothers house and showed it to him along with another
document on September 16, 1981.[49] Antonio alleged that when the documents were
shown to him, the same were still unsigned.[50] According to him, Paciencia thought that
the documents pertained to a lease of one of her rice lands, [51] and it was he who
explained that the documents were actually a special power of attorney to lease and sell
her fishpond and other properties upon her departure for the USA, and a Will which
would transfer her properties to Lorenzo and his family upon her death.[52] Upon hearing
this, Paciencia allegedly uttered the following words: Why will I never [return], why will
I sell all my properties? Who is Lorenzo? Is he the only [son] of God? I have other
relatives [who should] benefit from my properties. Why should I die already?
[53]
Thereafter, Antonio advised Paciencia not to sign the documents if she does not want
to, to which the latter purportedly replied, I know nothing about those, throw them away
or it is up to you. The more I will not sign them. [54] After which, Paciencia left the
documents with Antonio. Antonio kept the unsigned documents

and eventually turned them over to Faustino on September 18, 1981.[55]

Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision [56] denying the petition
thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24,
2000; and (b) disallows the notarized will dated September 13, 1981 of
Paciencia Regala.
SO ORDERED.[57]

The trial court gave considerable weight to the testimony of Rosie and concluded
that at the time Paciencia signed the Will, she was no longer possessed of sufficient
reason or strength of mind to have testamentary capacity.[58]
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will
of Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia
was of unsound mind when she executed the Will. It ratiocinated that the state of
being magulyan does not make a person mentally unsound so [as] to render [Paciencia]
unfit for executing a Will.[59]Moreover, the oppositors in the probate proceedings were not
able to overcome the presumption that every person is of sound mind. Further, no
concrete circumstances or events were given to prove the allegation that Paciencia was
tricked or forced into signing the Will.[60]
Petitioners moved for reconsideration[61] but the motion was denied by the CA in
its Resolution[62] dated August 31, 2006.
Hence, this petition.
Issues

Petitioners come before this Court by way of Petition for Review

on Certiorari ascribing upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN
IT ALLOWED THE PROBATE OF PACIENCIAS WILL DESPITE
RESPONDENTS UTTER FAILURE TO COMPLY WITH SECTION 11,
RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
MAKING CONCLUSIONS NOT IN ACCORDANCE WITH THE
EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN
RULING THAT PETITIONERS FAILED TO PROVE THAT PACIENCIA
WAS NOT OF SOUND MIND AT THE TIME THE WILL WAS
ALLEGEDLY EXECUTED[63]

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.
Our Ruling
We deny the petition.
Faithful compliance with the formalities
laid down by law is apparent from the face of
the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a
Will in probate proceedings.[64] This is expressly provided for in Rule 75, Section 1 of the
Rules of Court, which states:
Rule 75

PRODUCTION OF WILL. ALLOWANCE OF WILL

NECESSARY.
Section 1. Allowance necessary. Conclusive as to execution. No
will shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator,
being of sound mind, freely executed the will in accordance with the formalities
prescribed by law.[65]These formalities are enshrined in Articles 805 and 806 of the New
Civil Code, to wit:
Art. 805. Every will, other than a holographic will, must be subscribed
at the end thereof by the testator himself or by the testator's name written by
some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the
testator and of one another.
The testator or the person requested by him to write his name and the
instrumental witnesses of the will, shall also sign, as aforesaid, each and every
page thereof, except the last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express
direction, in the presence of the instrumental witnesses, and that the latter
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known to the witnesses, it
shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by
the testator and the witnesses. The notary public shall not be required to retain
a copy of the will, or file another with the Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with
the formalities laid down by law. The signatures of the testatrix, Paciencia, her

instrumental witnesses and the notary public, are all present and evident on the
Will. Further, the attestation clause explicitly states the critical requirement that the
testatrix and her instrumental witnesses signed the Will in the presence of one another
and that the witnesses attested and subscribed to the Will in the presence of the testator
and of one another. In fact, even the petitioners acceded that the signature of Paciencia in
the Will may be authentic although they question her state of mind when she signed the
same as well as the voluntary nature of said act.
The burden to prove that Paciencia was of
unsound mind at the time of the execution of the
will lies on the shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was magulyan or
forgetful so much so that it effectively stripped her of testamentary capacity. They
likewise claimed in their Motion for Reconsideration[66] filed with the CA that Paciencia
was not only magulyan but was actually suffering from paranoia.[67]
We are not convinced.
We agree with the position of the CA that the state of being forgetful does not
necessarily make a person mentally unsound so as to render him unfit to execute a Will.
[68]
Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the
New Civil Code states:
Art. 799. To be of sound mind, it is not necessary that the testator be in
full possession of all his reasoning faculties, or that his mind be wholly
unbroken, unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the
will to know the nature of the estate to be disposed of, the proper objects of his
bounty, and the character of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencias

forgetfulness, there is no substantial evidence, medical or otherwise, that would show that
Paciencia was of unsound mind at the time of the execution of the Will. On the other

hand, we find more worthy of credence Dra. Limpins testimony as to the soundness of
mind of Paciencia when the latter went to Judge Limpins house and voluntarily executed
the Will. The testimony of subscribing witnesses to a Will concerning the testators mental
condition is entitled to great weight where they are truthful and intelligent. [69] More
importantly, a testator is presumed to be of sound mind at the time of the execution of the
Will and the burden to prove otherwise lies on the oppositor. Article 800 of the New
Civil Code states:
Art. 800. The law presumes that every person is of sound mind, in the
absence of proof to the contrary.
The burden of proof that the testator was not of sound mind at the time
of making his dispositions is on the person who opposes the probate of the
will; but if the testator, one month, or less, before making his will was publicly
known to be insane, the person who maintains the validity of the will must
prove that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one
month or less before the making of the Will. Clearly, thus, the burden to prove that
Paciencia was of unsound mind lies upon the shoulders of petitioners. However and as
earlier mentioned, no substantial evidence was presented by them to prove the same,
thereby warranting the CAs finding that petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As
aptly pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature
of the document she executed. She specially requested that the customs of her
faith be observed upon her death. She was well aware of how she acquired the
properties from her parents and the properties she is bequeathing to
LORENZO, to his wife CORAZON and to his two (2) children. A third child
was born after the execution of the will and was not included therein as
devisee.[70]

Bare allegations of duress or influence of fear

or threats, undue and improper influence and
pressure, fraud and trickery cannot be used as
basis to deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or
testatrix to execute the document that will distribute his/her earthly possessions upon
his/her death.Petitioners claim that Paciencia was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue
and improper pressure and influence by Lorenzo or by some other persons for his benefit;
and that assuming Paciencias signature to be genuine, it was obtained through fraud or
trickery. These are grounded on the alleged conversation between Paciencia and Antonio
on September 16, 1981 wherein the former purportedly repudiated the Will and left it
unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated
Lorenzo as her own son and that love even extended to Lorenzos wife and children. This
kind of relationship is not unusual. It is in fact not unheard of in our culture for old maids
or spinsters to care for and raise their nephews and nieces and treat them as their own
children. Such is a prevalent and accepted cultural practice that has resulted in many
family discords between those favored by the testamentary disposition of a testator and
those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship
with Lorenzo and his family is different from her relationship with petitioners. The very
fact that she cared for and raised Lorenzo and lived with him both here and abroad, even
if the latter was already married and already has children, highlights the special bond
between them. This unquestioned relationship between Paciencia and the devisees tends
to support the authenticity of the said document as against petitioners allegations of
duress, influence of fear or threats, undue and improper influence, pressure, fraud, and
trickery which, aside from being factual in nature, are not supported by concrete,
substantial and credible evidence on record. It is worth stressing that bare arguments, no
matter how forceful, if not based on concrete and substantial evidence cannot suffice to
move the Court to uphold said allegations.[71] Furthermore, a purported will is not [to be]

denied legalization on dubious grounds. Otherwise, the very institution of testamentary

succession will be shaken to its foundation, for even if a will has been duly executed in
fact, whether x x x it will be probated would have to depend largely on the attitude of
those interested in [the estate of the deceased].[72]
Court should be convinced by the evidence
presented before it that the Will was duly
executed.
Petitioners dispute the authenticity of Paciencias Will on the ground that Section
11 of Rule 76 of the Rules of Court was not complied with. It provides:
RULE 76
ALLOWANCE OR DISALLOWANCE OF WILL
Section 11. Subscribing witnesses produced or accounted for where
will contested. If the will is contested, all the subscribing witnesses, and the
notary in the case of wills executed under the Civil Code of the Philippines, if
present in the Philippines and not insane, must be produced and examined, and
the death, absence, or insanity of any of them must be satisfactorily shown to
the court. If all or some of such witnesses are present in the Philippines but
outside the province where the will has been filed, their deposition must be
taken. If any or all of them testify against the due execution of the will, or do
not remember having attested to it, or are otherwise of doubtful credibility, the
will may nevertheless, be allowed if the court is satisfied from the testimony of
other witnesses and from all the evidence presented that the will was executed
and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least
three (3) witnesses who know the handwriting of the testator explicitly declare
that the will and the signature are in the handwriting of the testator; in the
absence of any competent witnesses, and if the court deem it necessary, expert
testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been
presented in court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify
before the court was satisfactorily explained during the probate proceedings. As testified
to by his son, Faustino had a heart attack, was already bedridden and could no longer talk
and express himself due to brain damage. To prove this, said witness presented the
corresponding medical certificate. For her part, Dra. Limpin testified that her father,
Judge Limpin, suffered a stroke in 1991 and had to undergo brain surgery. At that time,
Judge Limpin could no longer talk and could not even remember his daughters name so
that Dra. Limpin stated that given such condition, her father could no longer testify. It is
well to note that at that point, despite ample opportunity, petitioners neither interposed
any objections to the testimonies of said witnesses nor challenged the same on cross
examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of
the notary public to testify in court. Because of this the probate of Paciencias Will may be
allowed on the basis of Dra. Limpins testimony proving her sanity and the due execution
of the Will, as well as on the proof of her handwriting. It is an established rule that [a]
testament may not be disallowed just because the attesting witnesses declare against its
due execution; neither does it have to be necessarily allowed just because all the attesting
witnesses declare in favor of its legalization; what is decisive is that the court is
convinced by evidence before it, not necessarily from the attesting witnesses, although
they must testify, that the will was or was not duly executed in the manner required by
law.[73]
Moreover, it bears stressing that [i]rrespective x x x of the posture of any of the
parties as regards the authenticity and due execution of the will x x x in question, it is the
mandate of the law that it is the evidence before the court and/or [evidence that] ought to
be before it that is controlling.[74] The very existence of [the Will] is in itself prima
facie proof that the supposed [testatrix] has willed that [her] estate be distributed in the
manner therein provided, and it is incumbent upon the state that, if legally tenable, such
desire be given full effect independent of the attitude of the parties affected thereby.
[75]
This, coupled with Lorenzos established relationship with Paciencia, the evidence and
the testimonies of disinterested witnesses, as opposed to the total lack of evidence
presented by petitioners apart from their self-serving testimonies, constrain us to tilt the
balance in favor of the authenticity of the Will and its allowance for probate.

WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and
the Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979
areAFFIRMED.
SO ORDERED.
EN BANC
G.R. No. L-6801

March 14, 1912

JULIANA BAGTAS, plaintiffs-appellee,

vs.
ISIDRO PAGUIO, ET AL., defendants-appellants.
Salas and Kalaw for appellants.
Jose Santiago for appellee.
TRENT, J.:
This is an appeal from an order of the Court of First Instance of the Province of Bataan, admitting to
probate a document which was offered as the last will and testament of Pioquinto Paguio y Pizarro.
The will purports to have been executed in the pueblo of Pilar, Province of Bataan, on the 19th day
of April, 1908. The testator died on the 28th of September, 1909, a year and five months following
the date of the execution of the will. The will was propounded by the executrix, Juliana Bagtas,
widow of the decedent, and the opponents are a son and several grandchildren by a former
marriage, the latter being the children of a deceased daughter.
The basis of the opposition to the probation of the will is that the same was not executed according
to the formalities and requirements of the law touching wills, and further that the testator was not in
the full of enjoyment and use of his mental faculties and was without the mental capacity necessary
to execute a valid will.
The record shows that the testator, Pioquinto Paguio, for some fourteen of fifteen years prior to the
time of his death suffered from a paralysis of the left side of his body; that a few years prior to his
death his hearing became impaired and that he lost the power of speech. Owing to the paralysis of
certain muscles his head fell to one side, and saliva ran from his mouth. He retained the use of his
right hand, however, and was able to write fairly well. Through the medium of signs he was able to
indicate his wishes to his wife and to other members of his family.
At the time of the execution of the will there were present the four testamentary witnesses, Agustin
Paguio, Anacleto Paguio, and Pedro Paguio, and attorney, Seor Marco, and one Florentino Ramos.
Anacleto Paguio and the attorney have since died, and consequently their testimony was not
available upon the trial of the case in the lower court. The other three testamentary witnesses and
the witness Florentino Ramos testified as to the manner in which the will was executed. According to
the uncontroverted testimony of these witnesses the will was executed in the following manner:
Pioquinto Paguio, the testator, wrote out on pieces of paper notes and items relating to the
disposition of his property, and these notes were in turn delivered to Seor Marco, who transcribed
them and put them in form. The witnesses testify that the pieces of paper upon which the notes were

written are delivered to attorney by the testator; that the attorney read them to the testator asking if
they were his testamentary dispositions; that the testator assented each time with an affirmative
movement of his head; that after the will as a whole had been thus written by the attorney, it was
read in a loud voice in the presence of the testator and the witnesses; that Seor Marco gave the
document to the testator; that the latter, after looking over it, signed it in the presence of the four
subscribing witnesses; and that they in turn signed it in the presence of the testator and each other.
These are the facts of record with reference to the execution of the will and we are in perfect accord
with the judgment of the lower court that the formalities of the Code of Civil Procedure have been
fully complied with.
This brings us now to a consideration of appellants' second assignment of error, viz, the testator's
alleged mental incapacity at the time of the execution of the will. Upon this point considerable
evidence was adduced at the trial. One of the attesting witnesses testified that at the time of the
execution of the will the testator was in his right mind, and that although he was seriously ill, he
indicated by movements of his head what his wishes were. Another of the attesting witnesses stated
that he was not able to say whether decedent had the full use of his mental faculties or not, because
he had been ill for some years, and that he (the witnesses) was not a physician. The other
subscribing witness, Pedro Paguio, testified in the lower court as a witness for the opponents. He
was unable to state whether or not the will was the wish of the testator. The only reasons he gave for
his statement were the infirmity and advanced age of the testator and the fact that he was unable to
speak. The witness stated that the testator signed the will, and he verified his own signature as a
subscribing witness.
Florentino Ramos, although not an attesting witness, stated that he was present when the will was
executed and his testimony was cumulative in corroboration of the manner in which the will was
executed and as to the fact that the testator signed the will. This witness also stated that he had
frequently transacted matters of business for the decedent and had written letters and made
inventories of his property at his request, and that immediately before and after the execution of the
will he had performed offices of his character. He stated that the decedent was able to communicate
his thoughts by writing. The testimony of this witness clearly indicates the presence of mental
capacity on the part of the testator. Among other witnesses for the opponents were two physician,
Doctor Basa and Doctor Viado. Doctor Basa testified that he had attended the testator some four or
five years prior to his death and that the latter had suffered from a cerebral congestion from which
the paralysis resulted. The following question was propounded to Doctor Basa:
Q.
Referring to mental condition in which you found him the last time you attended him,
do you think he was in his right mind?
A.
I can not say exactly whether he was in his right mind, but I noted some mental
disorder, because when I spoke to him he did not answer me.
Doctor Basa testified at more length, but the substance of his testimony is that the testator had
suffered a paralysis and that he had noticed some mental disorder. He does not say that the testator
was not in his right mind at the time of the execution of the will, nor does he give it at his opinion that
he was without the necessary mental capacity to make a valid will. He did not state in what way this
mental disorder had manifested itself other than that he had noticed that the testator did not reply to
him on one occasion when he visited him.

Doctor Viado, the other physician, have never seen the testator, but his answer was in reply to a
hypothetical question as to what be the mental condition of a person who was 79 years old and who
had suffered from a malady such as the testator was supposed to have had according to the
testimony of Doctor Basa, whose testimony Doctor Viado had heard. He replied and discussed at
some length the symptoms and consequences of the decease from which the testator had suffered;
he read in support of his statements from a work by a German Physician, Dr. Herman Eichost. In
answer, however, to a direct question, he stated that he would be unable to certify to the mental
condition of a person who was suffering from such a disease.
We do not think that the testimony of these two physicians in any way strengthens the contention of
the appellants. Their testimony only confirms the fact that the testator had been for a number of
years prior to his death afflicted with paralysis, in consequence of which his physician and mental
strength was greatly impaired. Neither of them attempted to state what was the mental condition of
the testator at the time he executed the will in question. There can be no doubt that the testator's
infirmities were of a very serious character, and it is quite evident that his mind was not as active as
it had been in the earlier years of his life. However, we can not include from this that he wanting in
the necessary mental capacity to dispose of his property by will.
The courts have been called upon frequently to nullify wills executed under such circumstances, but
the weight of the authority is in support if the principle that it is only when those seeking to overthrow
the will have clearly established the charge of mental incapacity that the courts will intervene to set
aside a testamentary document of this character. In the case of Bugnao vs. Ubag (14 Phil. Rep.,
163), the question of testamentary capacity was discussed by this court. The numerous citations
there given from the decisions of the United States courts are especially applicable to the case at
bar and have our approval. In this jurisdiction the presumption of law is in favor of the mental
capacity of the testator and the burden is upon the contestants of the will to prove the lack of
testamentary capacity. (In the matter of the will of Cabigting, 14 Phil. Rep., 463; in the matter of the
will of Butalid, 10 Phil. Rep., 27; Hernaez vs. Hernaez, 1 Phil. Rep., 689.)
The rule of law relating to the presumption of mental soundness is well established, and the testator
in the case at bar never having been adjudged insane by a court of competent jurisdiction, this
presumption continues, and it is therefore incumbent upon the opponents to overcome this legal
presumption by proper evidence. This we think they have failed to do. There are many cases and
authorities which we might cite to show that the courts have repeatedly held that mere weakness of
mind and body, induced by age and disease do not render a person incapable of making a will. The
law does not require that a person shall continue in the full enjoyment and use of his pristine
physical and mental powers in order to execute a valid will. If such were the legal standard, few
indeed would be the number of wills that could meet such exacting requirements. The authorities,
both medical and legal, are universal in statement that the question of mental capacity is one of
degree, and that there are many gradations from the highest degree of mental soundness to the
lowest conditions of diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right which a
person may exercise and this right should not be nullified unless mental incapacity is established in
a positive and conclusive manner. In discussing the question of testamentary capacity, it is stated in
volume 28, 70, of the American and English Encyclopedia of Law, that
Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weaknesses,

disorders, or peculiarities and still be capable in law of executing a valid will. (See the
numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted
with approval in Campbell vs. Campbell (130 Ill., 466), as follows:
To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be
in the full possession of his reasoning faculties.
In note, 1 Jarman on Wills, 38, the rule is thus stated:
The question is not so much, that was the degree of memory possessed by the testator, as,
had he a disposing memory? Was he able to remember the property he was about to
bequeath, the manner of disturbing it, and the objects of his bounty? In a word, were his
mind and memory sufficiently sound to enable him to know and understand the business in
which he was engaged at the time when he executed his will. (See authorities there cited.)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The
testator died at the age of nearly 102 years. In his early years he was an intelligent and well
informed man. About seven years prior to his death he suffered a paralytic stroke and from that time
his mind and memory were mush enfeebled. He became very dull of hearing and in consequence of
the shrinking of his brain he was affected with senile cataract causing total blindness. He became
filthy and obscene in his habits, although formerly he was observant of the properties of life. The
court, in commenting upon the case, said:
Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total, or extend to his immediate family or property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will, and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful or recent events, especially of names, and repeated questions
in conversation; and sometimes, when aroused for sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.
In the above case the will was sustained. In the case at bar we might draw the same contrast as was
pictured by the court in the case just quoted. The striking change in the physical and mental vigor of
the testator during the last years of his life may have led some of those who knew him in his earlier
days to entertain doubts as to his mental capacity to make a will, yet we think that the statements of
the witnesses to the execution of the will and statements of the conduct of the testator at that time all
indicate that he unquestionably had mental capacity and that he exercised it on this occasion. At the
time of the execution of the will it does not appear that his conduct was irrational in any particular. He

seems to have comprehended clearly what the nature of the business was in which he was
engaged. The evidence show that the writing and execution of the will occupied a period several
hours and that the testator was present during all this time, taking an active part in all the
proceedings. Again, the will in the case at bar is perfectly reasonable and its dispositions are those
of a rational person.
For the reasons above stated, the order probating the will should be and the same is hereby
affirmed, with costs of this instance against the appellants.
FIRST DIVISION
[G.R. No. 4445. September 18, 1909. ]
CATALINA BUGNAO, proponent-appellee, v. FRANCISCO UBAG, ET AL., contestants-appellants.
Rodriguez & Del Rosario for Appellants.
Fernando Salas for Appellee.
SYLLABUS
1. EXECUTION OF WILLS; WITNESSES. While a number of contradictions in the testimony of alleged
subscribing witnesses to a will as to the circumstances under which it was executed, or a single contradiction
as to a particular incident to which the attention of such witnesses must have been directed, may in certain
cases justify the conclusion that the alleged witnesses were not present, together, at the time when the
alleged will was executed, a mere lapse of memory on the part of one of these witnesses as to the precise
details of an unimportant incident, to which his attention was not directed, does not necessarily put in doubt
the truth and veracity of the testimony in support of the execution of the will.
2. ID.; TESTAMENTARY CAPACITY DEFINED. Proof of the existence of all the elements in the following
definition of testamentary capacity, which has frequently been adopted in the United States, held sufficient
to establish the existence of such capacity in the absence of proof of very exceptional circumstance:
"Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is
engaged at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty."

DECISION

CARSON, J. :

This is an appeal from an order of the Court of First Instance of Oriental Negros, admitting to probate a
document purporting to be the last will and testament of Domingo Ubag, deceased. The instrument was
propounded by his widow, Catalina Bugnao, the sole beneficiary thereunder, and probate was contested by
the appellants, who would be entitled to share in the distribution of his estate, if probate were denied, as it
appears that the deceased left no heirs in the direct ascending or descending line.
Appellants contend that the evidence of record is not sufficient to establish the execution of the alleged will
in the manner and form prescribed in section 618 of the Code of Civil Procedure; and that at the time when
it is alleged that the will was executed, Ubag was not of sound mind and memory, and was physically and
mentally incapable of making a will.
The instrument propounded for probate purports to be the last will and testament of Domingo Ubag, signed
by him in the present of three subscribing and attesting witnesses, and appears upon its face to have been
duly executed in accordance with the provisions of the Code of Civil Procedure touching the making of wills.

Two of the subscribing witnesses, Victor J. Bingtoy and Catalino Marino, testified in support of the will, the
latter being the justice of the peace of the municipality wherein it was executed; and their testimony was
corroborated in all important details by the testimony of the proponent herself, who was present when the
will was made. It does not appear from the record why the third subscribing witness was not called; but
since counsel for contestants makes no comment upon his absence, we think it may safely be inferred that
there was some good and sufficient reason therefore. In passing, however, it may be well to observe that,
when because of death, sickness, absence, or for any other reason, it is not practicable to call to the witness
stand all the subscribing witnesses to a will offered for probate, the reason for the absence of any of these
witnesses should be made to appear of record, and this especially in cases such as the one at bar, wherein
there is a contest.
The subscribing witnesses gave full and detailed accounts of the execution of the will and swore that the
testator, at the time of its execution, was of sound mind and memory, and in their presence attached his
signature thereto as his last will and testament, and that in his presence and in the presence of each other,
they as well as the third subscribing witness signed the instrument as attesting witnesses. Despite the
searching and exhaustive cross-examination to which they were subjected, counsel for appellants could
point to no flaw in their testimony save an alleged contradiction as to a single incident which occurred at or
about the time when the will was executed, a contradiction, however, which we think is more apparent than
real. One of the witnesses stated that the decease sat up in bed and signed his name to the will, and that
after its execution food was given him by his wife; while the other testified that he was assisted into a sitting
position, and was given something to eat before he signed his name. We think the evidence discloses that
his wife aided the sick man to sit up in bed at the time when he signed his name to the instrument, and that
he was given nourishment while he was in that position, but it is not quite clear whether this was
immediately before or after, or both before and after he attached his signature to the will. To say that the
sick man sat up or raised himself up in bed is not necessarily in conflict with the fact that he received
assistance in doing so; and it is not at all improbable or impossible that nourishment might have been given
to him both before and after signing the will, and that one witness might remember the former occasion and
the other witness might recall the latter, although neither witness could recall both. But, however this may
have been, we do not think that a slight lapse of memory on the part of one or the other witness, as to the
precise details of an unimportant incident, to which his attention may not have been particularly directed, is
sufficient to raise a doubt as to the veracity of these witnesses, or as to the truth and accuracy of their
recollection of the fact of the execution of the instrument. Of course, a number of contradictions in the
testimony of alleged subscribing witnesses to a will as to the circumstances under which it was executed, or
even a single contradiction as to a particular incident, where the incident was of such a nature that the
attention of any person who was present must have been directed to it, and where the contradictory
statements in regard to it are also clear and explicit as to negative the possibility or probability take, might
well be sufficient to justify the conclusion that the witnesses could not possibly have been present, together,
at the time when it is alleged the will was executed; but the apparent contradictions in the testimony of the
witnesses in the case at bar fall far short of raising a doubt as to their veracity, and on the other hand their
testimony as a whole gives such a clear, and is so convincing and altogether satisfactory that we have no
doubt that the trial judge who heard them testify properly accepted their testimony as worthy of entire
confidence and belief.
The contestants put upon the stand four witnesses for the purpose of proving that at the time and on the
occasion when the subscribing witnesses testified that the will was executed, these witnesses were not in
the house with the testator, and that the alleged testator was at that time in such physical and mental
condition that it was impossible for him to have made a will. Two of these witnesses, upon crossexamination, admitted that they were not in the house at or between the hours of four and six in the
afternoon of the day on which the will is alleged to have been made, this being the time at which the
witnesses in support of the will testified that it was executed. Of the other two witnesses, one is a contestant
of the will, Macario Ubag, a brother of the testator, and the other, Canuto Sinoy, his close relative. These
witnesses swore that they were in the house of the deceased, where he was lying ill, at or about the time
when it is alleged that the will executed, and that at that time the alleged subscribing witnesses were not in
the house, and the alleged testator was so sick that he was unable to speak, to understand, or to make
himself understood, and that he was wholly incapacitated to make a will. But the testimony of Macario Ubag
is our opinion wholly unworthy of credence. In addition to his manifest interest in the result of the
investigation, it clearly discloses a fixed and settled purpose to overthrow the will at all costs, and to that
end an utter disregard of the truth, and a readiness to swear to any fact which he imagined would aid in
securing his object. An admittedly genuine and authentic signature of the deceased was introduced in
evidence for comparison with the signature attached to the will, but this witness in his anxiety to deny the
genuineness of the signature of his brother to the will, promptly and positively swore that the admittedly
genuine signature was not his brothers signature, and only corrected his erroneous statement in response

to a somewhat suggestive question by his attorney which evidently gave him to understand that his former
answer was likely to prejudice his own cause. On cross-examination, he was forced to admit that because
his brother and his brothers wife (in whose favor the will was made) were Aglipayanos, he and his other
brothers and sister had not visited them for many months prior to the one particular occasion as to which he
testified; and he admitted further, that, although he lived near at hand, at no time thereafter did he or any
of the other members of his family visit their dying brother, and that they did not even attend his funeral. If
the testimony of this witness could be accepted as true, it would be a remarkable coincidence indeed, that
the subscribing witnesses to the alleged will should have falsely pretended to have joined in its execution on
the very day, and at the precise hour, when this interested witness happened to pay his only visit to this
brother during his last illness, so that the testimony of this witness would furnish conclusive evidence in
support of the allegations of the contestants that the alleged will was not executed at the time and place or
in the manner and form alleged by the subscribing witnesses. We do not think the testimony of this witness
nor any of the other witnesses for the contestants is sufficient to raise even a doubt as to the truth of the
testimony of the subscribing witnesses as to the fact of the execution of the will, or as to the manner and
form in which it was executed.
In the course of the proceedings, an admittedly genuine signature of the deceased was introduced in
evidence, and upon a comparison of this signature with the signature attached to the instrument in
question, we are wholly of the opinion of the trial judge, who held in this connection as follows:
jgc:chanroble s.com.ph

"No expert evidence had been adduced with regard to those two signatures, and the presiding judge of this
court does not claim to possess any special expert knowledge in the matter of signatures; nevertheless, the
court has compared these two signatures, and does not find that any material difference exists between the
same. It is true that the signature which appears in the document offered for authentication discloses that at
the time of writing the subscriber was more deliberate in his movements, but two facts must be
acknowledged: First, that the testator was seriously ill, and the other fact, that for some reason which is not
stated the testator was unable to see, and was a person who was not in the habit of signing his name
everyday.
"These facts should sufficiently explain whatever difference may exist between the two signatures, but the
court finds that the principal strokes in the two signatures are identical."
cralaw virtua1aw library

That the testator was mentally capable of making the will is in our opinion fully established by the testimony
of the subscribing witnesses who swore positively that, at the time of its execution, he was of sound mind
and memory. It is true that their testimony discloses the fact that he was at that time extremely ill, in an
advanced stage of tuberculosis complicated with severe intermittent attacks of asthma; that he was too sick
to rise unaided from his bed; that he needed assistance even to raise himself to a sitting position; and that
during the paroxysms of asthma to which he was subject he could not speak; but all this evidence of
physical weakness in no wise establishes his mental incapacity or a lack of testamentary capacity, and
indeed the evidence of the subscribing witnesses as to the aid furnished them by the testator in preparing
the will, and his clear recollection of the boundaries and physical description of the various parcels of land
set out therein, taken together with the fact that he was able to give to the person who wrote the will clear
and explicit instructions as to his desires touching the disposition of his property, is strong evidence of his
testamentary capacity.
Counsel for appellant suggests that the fact that the alleged will leaves all the property of the testator to his
widow, and wholly fails to make any provision for his brothers or sisters, indicates a lack of testamentary
capacity and undue influence; and because of the inherent improbability that a man would make so
unnatural and unreasonable a will, they contend that this fact indirectly corroborates their contention that
the deceased never did in fact execute the will. But when it is considered that the deceased at the time of
his death had no heirs in the ascending or descending line; that a bitter family quarrel had long separated
him from his brothers and sisters, who declined to have any relations with the testator because he and his
wife were adherents of the Aglipayano Church; and that this quarrel was so bitter that none of his brothers
or sisters, although some of them lived in the vicinity, were present at the time of his death or attended his
funeral; we think the fact that the deceased desired to leave and did leave all of his property to his widow
and made no provision for his brothers and sisters, who themselves were grown men and women, by no
means tends to disclose either an unsound mind or the presence of undue influence on the part of his wife,
or in any wise corroborates contestants allegation that the will never was executed.
It has been said that "the difficulty of stating standards or tests by which to determine the degree of mental
capacity of a particular person has been everywhere recognized, and grows out of the inherent impossibility
of measuring mental capacity, or its impairment by disease or other causes" (Greene v. Greene, 145 Ill.,

264, 276); and that "it is probable that no court has ever attempted to lay down any definite rule in respect
to the exact amount of mental capacity requisite for the making of a valid will, without appreciating the
difficulty of the undertaking" (Trish v. Newell, 62 Ill., 196, 203).
Between the highest degree of soundness of mind and memory which unquestionably carries with it full
testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there are
numberless degrees of mental capacity or incapacity, and while on one hand it has been held that "mere
weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable
of making a will, a weak or feeble minded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about and how or to whom he is disposing of his
property" (Lodge v. Lodge, 2 Houst. (Del.) , 418); that, "To constitute a sound and disposing mind, it is not
necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise" (Sloan v.
Maxwell, N. J. Eq., 563); that "It has not been understood that a testator must posses these qualities (of
sound and disposing mind and memory) in the highest degree. . . . Few indeed would be the wills confirmed,
if this is correct. Pain sickness, debility of body, from age or infirmity, would, according to its violence or
duration, in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement
must be such as deprives him of the rational faculties common to man" (Den. v. Vancleve, 5 N. J. L., 680);
and, that "Sound mind does not mean a perfectly balanced mind. The question of soundness is one of
degree" (Boughton v. Knight, L. R., 3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been held that
"testamentary incapacity does not necessarily require that a person shall actually be insane or of an
unsound mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily
infirmities or suffering, or from all these combined, may render the testator incapable of making a valid will,
providing such weakness really disqualifies her from knowing or appreciating the nature, effects, or
consequences of the act she is engaged in" (Manatt v. Scott, 106 Iowa,, 203; 68 Am. St. Rep., 293, 302).
But for the purposes of this decision it is not necessary for us to attempt to lay down a definition of
testamentary capacity which will cover all possible cases which may present themselves, because, as will be
seen from what has already been said, the testator was, at the time of making the instrument under
consideration, endowed with all the elements of mental capacity set out in the following definition of
testamentary capacity which has been frequently announced in courts of last resort in England and the
United States; and while in some cases testamentary capacity has been held to exist in the absence of proof
of some of these elements, there can be no question that, in the absence of proof of very exceptional
circumstances, proof of the existence of all these elements is sufficient to establish the existence of
testamentary capacity.
"Testamentary capacity is the capacity to comprehend the nature of the transaction in which the testator is
engaged at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty."
cralaw virtua1aw library

(Cf. large array of cases cited in support of this definition in the Encyclopedia of Law, vol. 23, p. 71, second
edition.)
In our opinion, the evidence of record establishes in a strikingly conclusive manner the execution of the
instrument propounded as the last will and testament of the deceased; that it was made in strict conformity
with the requisites prescribed by law; and that, at the time of its execution, the deceased was of sound mind
and memory and executed the instrument of his own free will and accord.
The order probating the will should be and is hereby affirmed, with the costs of this instance against the
appellants.

EN BANC
G.R. No. L-24569

February 26, 1926

MANUEL TORRES, petitioner-appellant and

LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.

Araneta & Zaragoza for appellant.

Marcaida, Capili & Ocampo and Thomas Cary Welch for appellee.
MALCOLM, J.:
This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.
Tomas Rodriguez died in the City of Manila Philippine Islands. On February 25, 1924, leaving a
considerable estate. Shortly thereafter Manuel Torres, one of the executors named in the will asked
that the will of Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of
the deceased on the grounds: (1) That the testator lacked mental capacity because at the time
of senile dementia and was under guardianship; (2) that undue influence had been exercised by the
persons benefited in the document in conjunction with others who acted in their behalf; and (3) that
the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After a
prolonged trial judgment was rendered denying the legalization of the will. In the decision of the trial
judge appeared, among others, these findings:
All this evidence taken together with the circumstances that before and at the time Tomas
Rodriguez was caused to sign the supposed will Exhibit A, and the copies thereof there
already existed a final judgment as to his mental condition wherein he was declared
physically and mentally incapacitated to take care of himself and manage his estate shows in
a clear and conclusive manner that at the time of signing the supposed will of Tomas
Rodriguez did not possess such mental capacity as was necessary to be able him to dispose
of his property by the supposed will.
But even supposing as contended by petitioner's counsel that Tomas Rodriguez was at the
time of execution of the will, competent to make a will, the court is of the opinion that the will
cannot be probated for it appears from the declaration of the attesting witness Elias Bonoan
that when the legatee Luz Lopez presented the supposed will, Exhibit A, to Tomas
Rodriguez, she told him to sign said Exhibit A because it was a document relative to the
complaint against one Castito, which Exhibit 4, then pending in the justice of the peace court,
and for the further reason that said Tomas Rodriguez was then under guardianship, due to
his being mentally and physically incapacitated and therefore unable to manage his property
and take care of himself. It must also be taken into account that Tomas Rodriguez was an old
man 76 years of age, and was sick in the hospital when his signature to the supposed will
was obtained. All of this shows that the signature of Tomas Rodriguez appearing in the will
was obtained through fraudulent and deceitful representations of those who were interested
in it. (Record on Appeal, p. 23)
From the decision and judgment above-mentioned the proponents have appealed. Two errors are
specified, viz: (1) The court below erred in holding that at the time of signing his will, Tomas
Rodriguez did not possess the mental capacity necessary to make the same, and (2) the court below
erred in holding that the signatures of Tomas Rodriguez to the will were obtained through fraudulent
and deceitful representations, made by persons interested in the executions of said will.
The record is voluminous close to two thousand typewritten pages, with a varied assortment of
exhibits. One brief contains two hundred seventy-four pages, the other four hundred fifteen pages.
The usual oral argument has been had. The court must scale this mountains of evidence more or
less relevant and of argument intense and prolific to discover the fertile valleys of fact and principle.

The topics suggested by the assignments of error Testamentary Capacity and Undue Influence
will be taken up separately and in order. An attempt will be made under each subject first to make
findings of fact quite separate and apart from those of the judge and second to make findings of law
and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
A. Facts. For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His
breakdown was undoubtedly due to organic weakness, to advancing years and to an accident which
occurred in 1921 (Exhibit 6). Ultimately, on August 10 1923, on his initiative, Tomas Rodriguez
designated Vicente F. Lopez as the administrator of his property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a
guardian for Tomas Rodriguez because of his age and pathological state. This petition was opposed
by Attorney Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while
Rodriguez was far from strong on account of his years, he was yet capable of looking after his
property with the assistance of his administrator, Vicente F. Lopez. The deposition of Tomas
Rodriguez was taken and a perusal of the same shows that he was able to answer nearly all of the
questions propounded intelligently (Exhibit 5-g). A trial had at which considerable oral testimony for
the petitioner was received. At the conclusion of the hearing, an order was issued by the presiding
judge, declaring Tomas Rodriguez incapacitated to take care of himself and to manage his property
and naming Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one incident which occurred in connection with
the guardianship proceedings, it may as well be mentioned here as later. This episode concerns the
effort of deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923.
We will let the witness tell in his own words what happened on the occasions in question:
I found him lying down on his bed. . . . And when it (the cleaning of his head) was finished, I
again entered his room, and told him that I had an order of the court which I wanted to read
as I did read to him, but after reading the order he asked me what the order meant; 'I read it
to you so that you may appear before the court, understand,' then I read it again, but he
asked what the order said; in view of that fact I left the order and departed from the house.
(S. R., p. 642.)
To return to our narrative possibly inspired by the latter portion of the order of Judge Diaz, Tomas
Rodriguez was taken to the Philippine General Hospital on November 27, 1923. There he was to
remain sick in bed until his death. The physician in charge during this period was Dr. Elias Domingo.
In the clinical case record of the hospital under the topic "Diagnosis (in full)," we find the following
"Senility; Hernia inguinal; Decubitus" (Exhibit 8).
On the door of the patient's room was placed a placard reading "No visitors, except father,
mother, sisters, and brothers." (Testimony of head nurse physician, there were permitted to visit the
patient only the following named persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz
Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad Vizcarra, Apolonia Lopez, Antonio Haman,
and Gregorio Araneta ((Exhibit 9). The list did not include the names of Margarita Lopez and her
husband Antonio Ventura. Indeed the last named persons experienced considerable difficulty in
penetrating in to the room of Rodriguez.

Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital ,
Rodriguez expressed to him a desire to make a will and suggested that the matter be taken up with
Vicente F. Lopez (S. R., p. 550). This information Santiago Lopez communicated to Vicente F.
Lopez, who then interviewed Maximino Mina, a practicing attorney in the City of Manila, for the
purpose of securing him to prepare the will. In accordance with this request, Judge Mina conferred
with Tomas Rodriguez in the hospital in December 16th and December 29th. He ascertained the
wishes of Rodriguez and wrote up a testament in rough draft. The attorney expected to return to the
hospital on December 31st to have the will executed but was unable to do so on account of having
to make a trip to the provinces. Accordingly, the papers were left with Santiago Lopez.
In corroboration of the above statements, we transcribe a portion of Judge Mina's testimony which
has not been challenged in any way:
ARANETA: Q. Will you please tell your motive for holding an interview with Vicente Lopez?
MAXIMINO MINA: A. Then I arrived in the house of Vicente Lopez, after the usual greeting
and other unimportant things, he consulted me or presented the question as to whether or
not D. Tomas could make his will, having announced his desire to do so. I told him that it
seemed that we were not called upon to decide or give an opinion as to whether or not he
can make a will; it is a question to be submitted to the court, but as he had announced his
desire, it is our duty to comply with it. Then he requested me to do what was necessary to
comply with his wishes: I told him I was to see him; then we agreed that on the morning next
to the following evening that is on the 16th, I should go to the General Hospital and so I did.
Q. Did you go to the hospital in the evening of the 16th? A. Yes, sir.
Q. Did you meet D. Tomas? A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a will?
OCAMPO: Leading.
ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you
saw him there? A. He told me that.
Q. Please tell us what conversation you had with D. Tomas Rodriguez? A. The
conversation I had with him that evening according to my best recollection I cannot tell
the exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, '
Good evening,' How are you,' ' How do you do? Very well, just came here in the name of D.
Vicente Lopez why does he not come. He cannot come because he has many things to do,
and besides it is hard for him and makes him tired, so he told me to come.' Mina, your
tenant, attorney.' Are you an attorney? Yes.' Where do you live? I live in Quiapo.' Oh, in
Quiapo, a good district, it is gay a commercial place you must have some business there
because that is a commercial place. Unfortunately, I have none, D. Tomas.' Well, you must
be have because the profession alone does not give enough. Where is your office? I work in
the office of Mr. Chicote. That Mr. Chicote must be rich, it seems to me that he is. The
profession gives almost nothing it is better to have properties. I am an attorney but do not
depend upon my profession. I interrupted D. Tomas saying, since you want to make a will,
when and to whom do you want to leave your fortune? Then he said, To whom else? To my

cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to give to
your cousin and niece? All my properties, Won't you specify the property to be given to each
of them? What for? All my property. Don't you have any other relatives? Yes, sir I have. Won't
you give any to those relatives? What for? was his answer. Well, do you want to specify said
properties, to say what they are? and he again said, What for? they know them, he is my
attorney-in-fact as to all property. I also said, Well and as legacy won't you give property to
other persons? answers, I think, something, they will know it. After being asked, Whom do
you think, would you want to be your executor? After hesitating a little, This Torres, Manuel or
Santiago Lopez also. Then I asked him, What is your religion? He answered, Roman
Apostolic Catholic, and then he also asked me, and your? Also Roman Apostolic Catholic,
Where have you studied?' 'In the University of Santo Tomas.' 'It is convenient to preserve the
Catholic religion that our descendants have left us. And you, what did you have anything
more to say as to your testamentary dispositions? No, he answered. Then I remind him, 'You
know that Vicente Lopez has sent me to get these dispositions of yours, and he said, Yes, do
it.' I asked him, When do you want it done? Later on, I will send for you. After this believing to
have done my duty, I bade him good-bye.
Q. Did you have any other occasion to see him? A. Yes.
Q. When? A. On December 29, 1923, also in the evening.
Q. Why did you go to see him? A. Because as I had not received any message either
from Vicente Lopez or Tomas Rodriguez, as I had received notices in connection with the
few cases I had in the provinces particularly in Tayabas, which compelled me to be absent
from Manila until January 1st at least, for I might be there for several days, so I went to the
General Hospital of my own accord since I had not received any messages from them
with a rough draft which I had prepared in accordance with what he had told me in our
conversation. After the greetings, I told him, Here I am D. Tomas; this is the rough draft of
your will in accordance with your former statements to me in order to submit it to you. Do you
want to read it?' 'Please do me the favor of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that is the way, few words you see it
takes only a few minutes; now I can execute the will. We can do it takes only a few minutes.'
In view of that statement of his, I called his attention, ' But we don't have witnesses, D.
Tomas.' I looked out through the door to see if I could call some witnesses but it was late
then and it was thought better to do it on the 31st of December. Then we talked about other
things, and he again asked. Where were you born? I told him in Quiapo. Ah, good district,
and especially now that the fiesta of Quiapo is coming near,' and then I interrupted him, Yes,
the fiesta of the Holy Child and of Our Lady of Mount Carmel' because we also talked about
the fiesta of San Sebastian. I again reminded him that we could not do it because the
witnesses were not there and he explained, Good Christmas present, isn't it?' I did not tell
him anything and in view of that I did not deem it necessary to stay there any longer.
Q. With whom did you make the arrangement to make the will on the evening of the 31st of
December you said that it was agreed that the will be executed on the evening of
December 31st? A. With Santiago Lopez and Don Tomas.
Q. Was the will executed on the 31st of December? A. What happened is this: In view of
that agreement, I fixed up the draft which I had, dating it the 31st of December, putting
everything in order; we agreed that Santiago would meet me on 31st day between five and

six in the evening or a little before, but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not trouble about going to the General
Hospital; because it could not be carried out for the reason that certain requisites were
lacking. In view of this and bearing always in mind that on the following day I had to go to the
provinces, I told Santiago Lopez that I would leave the papers with him because I might go to
the provinces.
Q. What may be the meaning of those words good Christmas present? A. They are given
a Christmas present when Christmas comes or on the occasion of Christmas.
Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the
will which you delivered to Santiago Lopez on December 21, 31, 1923? A. With the
exception of the words '3 de enero de 1924' It seems to be literally identical. (S. R. pp. 244249.)
As the witness stated, the will which was prepared by him is identical with that signed by the testator
and the attesting witnesses with the single exception of the change of the date from December 31,
1923, to January 3, 1924. Two copies besides the original of the will were made. The will is brief and
simple in terminology.
For purposes of record, we copy the will as here translated into English:
ONLY PAGE
In the City of Manila, Philippines Islands, this January 3, 1924, I, Tomas Rodriguez, of age
and resident of the City of Manila, Philippine Islands, do freely and voluntarily make this my
will and testament in the Spanish language which I know, with the following clauses:
First I declare that I am a Roman Apostolic Catholic, and order that my body be buried in
accordance with my religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my
only universal heirs of all my property.
Third. I appoint D. Manuel Torres and D. Santiago Lopez as my prosecutors.
In witness whereof I sign this typewritten will, consisting of one single page, in the presence
of the witness who sign below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS

We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez
executed this will, consisting of one single typewritten page, having signed at the bottom of
the will in the presence of us who saw as witnesses the execution of this will, we signed at
the bottom thereof in the presence of the testator and of each other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3, 1924 there gathered in the quarters of Tomas Rodriguez in the
Philippine General Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness; and Dr. Elias
Fernando Calderon, Dr. Elias Domingo and Dr. Florentino Herrera, physicians, there for purposes of
observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl. Legarda, S. R. p. 34. ) Possibly also Mrs.
Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were hovering in the
background.
As to what actually happened, we have in the record two absolutely contradictory accounts. One
emanates from the attesting witness, Doctor Bonoan. The other is the united testimony of all
remaining persons who were there.
Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to
formal matters, such as the identification of the signatures to the will .On cross-examination, he
rather started the proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to
sign the document it concerned a complaint against Castito and that nobody read the will to the
testator. Doctor Bonoan's testimony along this line is as follows:
QUESTIONS.
MARCAIDA : Q. Why were you a witness to the will of Tomas Rodriguez?
Araneta: I object to the question as being immaterial.
Court: Objection overruled.
Dr. Bonoan: A. Because I was called up by Mrs. Luz by telephone telling me to be in the
hospital at 3 o'clock sharp in the afternoon of the 3d of January.
Q. Who is that Luz whom you have mentioned? A. Luz Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.
Q. When did Luz Lopez talk to you in connection with your going to the hospital? A. On
the morning of the 3d she called me up by telephone.
Q. On the morning? A. On the morning.

Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk
to you? A. Yes, sir.
Q. How many days approximately before was it? A. I cannot tell the day, it was
approximately one week before, on that occasion when I was called up by her about the
deceased Vicente Lopez.
Q. What did she tell you when you went to the house of Vicente Lopez one week
approximately before signing the will? - A. That Tomas Rodriguez would make a will.
Q. Don't you know where the will of Tomas Rodriguez was made? - A. In the General
Hospital.
Q. Was that document written in the hospital? A. I have not seen it.
Q. When you went to the General Hospital on January 3, 1924, who were the persons you
met in the room where the patients was ? A. I met one of the nieces of the deceased
Tomas Rodriguez, Mrs. Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? A. Yes, sir.
Q. What time approximately did you go to the General Hospital on January 3d? A. A
quarter to 3.
Q. After you, who came? A. Antonio de Asis, Doctor Herrera, later on Doctor Calderon
arrived with Doctor Elias Domingo and lastly Santiago Lopez came and then Mr. Legarda.
Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital
in what position did you find him? A. He was lying down.
Q. Did you greet D. Tomas Rodriguez? A. I did.
Q. Did D. Tomas Rodriguez answer you? A. Dna. Nena immediately answered in advance
and introduced me to him saying that I was the brother of his godson.
Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo,
De Asis and Legarda greet Tomas Rodriguez?
ARANETA: I object to the question as being improper cross-examination. It has not been the
subject of the direct examination.
COURT: Objection overruled.
ARANETA: Exception.
A. No, sir, they joined us.
Q. What was D. Tomas told when he signed the will.? A. To sign it.

Q. Who told D. Tomas to sign the will? A. Luz Lopez.

Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the will? A. She
told him to sign the document; the deceased Tomas Rodriguez before signing the document
asked what that was which he was to sign.
Q. What did anybody answer to that question of D. Tomas? A. Luz Lopez told him to sign
it because it concerned a complaint against Castito. D. Tomas said, 'What is this?" And Luz
Lopez answered, 'You sign this document, uncle Tomas, because this is about the complaint
against Castito.
Q. Then Tomas Rodriguez signed the will? A. Yes, sir.
Q. Who had the will? Who was holding it? A. Mr. Vicente Legarda had it his own hands.
Q. Was the will signed by Tomas Rodriguez lying down, on his feet or seated? A. Lying
down.
Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the
will, did they read it to him? A. Nobody read the will to him.
Q. Did not D. Tomas read the will? A. I have not seen it.
Q. Were you present? A. Yes, sir. ( S. R. p. 8)
As it would be quite impracticable to transcribe the testimony of all the others who attended the
making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading role, tell
what transpired. He testified in part:
ARANETA : Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the same document? A. First that is to say the first document he
presented to me was a rough draft, a tentative will, and it was dated December 31st, and I
called his attention to the fact that the date was not December 31, 1923, and that it was
necessary to change the date to January 3, 1924, and it was done.
Q. And it was then, was it not when Exhibits A, A-1, and A-2 were written? A. Yes, sir.
Q. Do you any know where it was written? A. In the General Hospital.
Q. Did any time elapse from your making the suggestion that the document which you
delivered to Santiago Lopez be written until those three Exhibits A, A-1, and A-2 were
presented to you? A. About nine or ten minutes approximately.
Q. The time to make it clean? A. Yes, sir.

Q. Where were you during that time? A. In the room of D. Tomas Rodriguez.
Q. Were you talking with him during that time. A. Yes, sir.
Q. About what things were you talking with him? A. He was asking me about my health,
that of my family how my family was my girl, whether we were living in Pasay, he asked me
about the steamer Ildefonso, he said that it was a pity that it had been lost because he knew
that my father-in-law was the owner of the steamer Ildefonso.
xxx

xxx

xxx

Q. When those documents, Exhibit A, A-1, and A-2, that is the original and two copies of the
will signed by D. Tomas Rodriguez were written clean, will you please tell what happened?
A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and
told him: Don Tomas, here is this will which is ready for your signature.
Q. What did D. Tomas do when you said that his will you were showing to him was ready?
A. The first thing he asked was: the witnesses? Then I called the witnesses Gentlemen,
please come forward, and they came forward, and I handed the documents to D. Tomas. D.
Tomas got up and then took his eyeglasses, put them on and as he saw that the electric
lamp at the center was not sufficiently clear, he said: 'There is no more light;' then somebody
came forward bringing an electric lamp.
Q. What did D. Tomas do when that electric lamp was put in place? A. The eyeglasses
were adjusted again and then he began to read, and as he could not read much for a long
time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor
man was tired, I suggested that it be read to him and he stopped reading and I read the will
to him.
Q. What happened after you had read it to him? A. He said to me, 'Well, it is all right. It is
my wish and my will. Don't you have any pen?' I asked a pen of those who were there and
handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time 'What is that which I am going to sign?'
and Luz Lopez told him: 'It is in connection with the complaint against Castito?' A. It is not
true, no, sir.
Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez?
A. No, Sir, she said nothing.
Q. According to you, Tomas Rodriguez signed of his own accord? A. Yes, sir.
Q. Did nobody tell him to sign? A. Nobody.
Q. What happened after the signing of the will by Tomas Rodriguez? A. I called the
witnesses and we signed in the presence of each other and of Tomas Rodriguez.

Q. After the signing of the will, did you have any conversation with Tomas Rodriguez? A.
Doctor Calderon asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the conversation held between Doctor Calderon and
D. Tomas after the signing of the will? A. I remember that afterwards Doctor Calderon
talked to him about business. He asked him how the business of making loans at 18 per
cent. It seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury.
(S. R., p. 38.)
In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the
Bureau of Public Works and professor of engineering and architecture in the University of Santo
Tomas, suffice it to say that Luz Lopez de Bueno denied categorically the statements attributed to
her by Doctor Bonoan (S. R., p. 568). In this stand, she is corroborated by Doctor Calderon,
Domingo, and Herrera, the attending physicians. On this point, Doctor Calderon the Director of the
Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines,
testified:
Mr. ARANETA: Q. What have you seen or heard with regard to the execution of the will?
Dr. CALDERON: A. Mr. Legarda handled the will to D. Tomas Rodriguez. D. Tomas asked for
his eyeglass, wanted to read and it was extremely hard for him to do so. Mr. Legarda offered
to read the will, it was read to him and he heard that in that will Vicente Lopez and Luz Lopez
were appointed heirs; we also saw him sign that will, and he signed not only the original but
also the other copies of the will and we also saw how the witnesses signed the will; we heard
that D. Tomas asked for light at that moment; he heard that D. Tomas asked for light at that
moment; he was at that time in a perfect mental state. And we remained there after the will
was executed. I asked him, 'How do you feel, how are you? Well I am well, ' he answered. '
How is the business? There is a crisis at there is one good business, namely, that of making
loans at the rate of 18 per cent, 'and he answered, 'That is usury.; When a man answers in
that way, ' That is usury it shows that he is all right.
Q. Were you present when Mr. Legarda handed the will to him? A. Yes, sir.
Q. Did any person there tell Don Tomas that was a complaint to be filed against one Castito?
A. No, sir, I have not heard anything of the kind.
Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what
that was which he was to sign and that Luz Lopez answered, 'That is but a complaint in
connection with Castito.' Is that true? A. I have not heard anything of the kind.
Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.
Q. Was Luz Lopez there? A. I don't remember having seen her; I am not sure; D. Santiago
Lopez and the three witnesses were there; I don't remember that Luz Lopez was there.
Q. Had anybody told that to the deceased, would you have heard it? A. Yes, sir.

Q. Do you remember whether he was given a pen or he himself asked for it? A. I don't
know; it is a detail which I don't remember well; so that whether or not he was given a pen or
he himself asked for it, I do not remember.
Q. But did he sign without hesitation ? A. With no hesitation.
Q. Did he sign without anybody having indicated to him where he was to sign? A. Yes,
without anybody having indicated it to him.
Q. Do you know whether D. Tomas Rodriguez asked for more light before signing? A. He
asked for more lights, as I have said before.
Q. Do you remember that detail? A. Yes, sir. They first lighted the lamps, but as the light
was not sufficient, he asked for more light.
Q. Do you remember very well that he asked for light? A. Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda,
corroborated as it is by other witnesses of the highest standing in the community. The only
explanation we can offer relative to the testimony of Doctor Bonoan is that possibly he may have
arrived earlier than the others with the exception of Luz Lopez de Bueno, and that Luz Lopez de
Bueno may have made some sort of an effort to influence Tomas Rodriguez. There is however no
possible explanation of the statement of Doctor Bonoan to the effect that no one read the will to
Rodriguez when at least five other persons recollect that Vicente Legarda read it to him and recall
the details connected with the reading.
There is one curious occurrence which transpired shortly after the making of the will which should
here be mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in
favor of Doctor Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follow:
Be it know by these present:
That I, Luz Lopez de Bueno in consideration of the services which at my instance were and
will when necessary be rendered by Dr. Elias Bonoan in connection with the execution of the
will of my uncle, Don Tomas Rodriguez and the due probate thereof, do hereby agree to pay
said doctor, by way of remuneratory donation, the sum of one thousand pesos (P1,000),
Philippine currency, as soon as said services shall have been fully rendered and I shall be in
possession of the inheritance which in said will is given to me.
In witness whereof, I sign this document which was freely and spontaneously executed by
me in Manila, this January 7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural between Doctor Bonoan and Luz Lopez de
Bueno relative to the execution of the above document. We shall not attempt to settle these
differences as in the final analysis it will not affect the decision one way or the other. The most

reasonable supposition is that Luz Lopez de Bueno imprudently endeavored to bring over Doctor
Bonoan to her side of the race by signing and giving to him Exhibit 1. But the event cannot easily be
explained away.
Tomas Rodriguez passed away in the Philippine General Hospital, as we said on February 25, 1924.
Not even prior to his demise the two actions in the Lopez family had prepared themselves for a fight
over the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in
charge of the Department of Insane of San Lazaro Hospital an Assistant Professor of Nervous and
Mental Diseases in the University of the Philippines, as attending physician; as associated with him
for purposes of investigation Dr. Fernando Calderon the Director of the Philippine General Hospital
and Dr. Florentino Herrera, a physician in active practice in the City of Manila; and had arranged to
have two members of the medical fraternity, Doctors De Asis and Bonoan as attesting witnesses.
The Margarita Lopez faction had taken equal precautions by calling a witnesses in the guardship
proceedings Dr. Sixto de los Angeles Professor and Chief of the Department of Legal Medicine in the
University of the Philippines, and Dr. Samuel Tietze, with long experience in mental diseases;
thereafter by continuing Doctors de Los Angeles and Tietze to examine Tomas Rodriguez and by
associating with them Dr. William Burke, a well-known physician of the City of Manila. Skilled
lawyers were available to aid and abet the medical experts. Out of such situations, do will contests
arise.
An examination of the certificates made by the two sets of physicians and of their testimony shows
that on most facts they concur. Their deductions from these facts disclose a substantial divergence
of opinion. It is a hopeless task to try to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions. The best that we can do under the
circumstances is to set forth the findings of the Calderon committed on the hand and of the De Los
Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas Rodriguez individually and jointly before
the date when the will was executed. All of them, as we have noticed were, present at the signing of
the will to note the reactions of the testator. On the same day that the will was accomplished, the
three doctors signed the following certificate:
The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the
practice of their profession do hereby certify:
That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor
No. 3, room No. 361 on three different occasion and on different days and have found that
said patient is suffering from anemia, hernia inguinal, chronic dyspepsia and senility.
As to his mental state the result of the different tests to which this patient was submitted is
that his intellectual faculties are sound, except that his memory is weak, which is almost a
loss for recent facts, or events which have recently occurred, due to his physical condition
and old age.
They also certify that they were present at the time he signed his will on January 3, 1924, at
1:25 p.m. and have found his mental state in the same condition as was found by the
undersigned in their former examination and that in executing said will the testator and full
knowledge of the contents thereof.

In testimony whereof, we sign in Manila this January 3, 1924.

(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
Manila
(Sgd.) Dr. ELIAS DOMINGO
613 Remedios
Malate
(Exhibit E in relation with Exhibits C and D.)
Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality
of Tomas Rodriguez What follows is possibly the most significant of the doctor's statements:
Dr. CALDERON testifying after interruption:
A. I was naturally interested in finding out the true mental state of Tomas Rodriguez and that
was the chief reason why I accepted and gave my cooperation to Messrs. Elias Domingo
and Florentino Herrera because had I found that Tomas Rodriguez and Florentino Herrera
because had I found that Tomas Rodriguez was really insane, I should have ordered his
transfer to the San Lazaro Hospital or to other places, and would not have left him in the
General Hospital. Pursuant to my desire, I saw Tomas Rodriguez in his room alone twice to
have interviews with his, he begging a person whom I knew since several years ago; at the
end of the interviews I became convinced that there was nothing wrong with him; I had not
seen anything indicating that he was insane and for this reason I accepted the request of my
companions and joined them; we have been on five different occasions examining Tomas
Rodriguez jointly from the physical standpoint but chiefly from the standpoint of his mental
state; I have been there with Messrs. Herrera and Elias Domingo, examining Tomas
Rodriguez and submitting to a mental test on the 28, 29, 10 and 31 of December and the
22nd of January, 1924 five consecutive days in which he have been together besides my
particular visits.
Q. Will you place state the result of the observation you made alone before those made by
the three of you jointly? A. I asked Tomas Rodriguez some questions when I went alone
there, I asked him were he was living formerly and he well remembered that in Intramuros,
Calle Real; I asked him whether he remembered one Calderon who was living in the upper
floor of the house and then he told me yes; than I asked him about his tenant by the name of
Antonio Jimenez and he told me yes, now I remember that he had two daughters, Matilde
and Paz. Then I told him that I had been living in the house of the gentlemen, Antonio
Jimenez already dead in the upper story of the house belonged to Tomas Rodriguez; I told
him that Antonio Jimenez was his tenant of the upper story, that is that he was living on the
ground floor and Antonio Jimenez upstairs and he remembered all of this I also began to talk
of my brother, Felipe Calderon, who he said of course that he knew; he remembered him
because he was his companion and was a successful attorney. This was when I had an

interview with him. Then in order to observe better and to be sure of my judgment or opinion
about the mental state of Tomas Rodriguez, I saw him again and we began to speak of
something which I don't remember now. In fine, we talked of things of interest and as I had
finally accepted the request of Drs. Elias Domino and Florentino Herrera to join then the first
and second time that Herrera, Domingo and myself went there, no stenographic notes were
taken of what happened there.
Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the
patient? A. Yes, sir.
Q. From the result f the conversation you had with Tomas Rodriguez on those two visits what
is your opinion as to his mental capacity? A. That he was sick; that he was weak, but I
have found absolutely no incoherence in his ideas; he answered my questions well and as I
was observing him there were times when he did not remember things of the present
because this must be admitted but on the other hand he had a wonderful memory of past
events; in talking with him, you would not notice in the conversation any alteration in his mind
nor that man had lost the reasoning power or logic.
Q. Did you notice any loss of memory, or that his memory was weakening about things of the
past? A. About things of the past, I mean that you talk to him now about specific matters,
and after about five or ten minutes he no longer remembers what had been talked of.
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Q. Do you remember the conversation you had with him for the first time when the three of
you paid a visit to the patient? A. I don't remember the details, but I do remember the
questions I put to him. I asked D. Tomas Rodriguez: You are an old man aged, sick: Yes, I
am thinking to make a will. But why don't you decide? There is no hurry there is time to make
a will, 'he said. Then in case you decide to make a will, to whom are you going to leave your
property? Don't you have any relatives? I have a relative, Vicente Lopez, my first cousin, and
Margarita Lopez my first cousin they are brothers.' In that case, to whom, do you want to
leave your property? Why, I don't have much, very little, but I am decided to leave it to my
cousin, Vicente Lopez and his daughter Luz Lopez. Why would you not give anything to
Margarita Lopez? No because her husband is very bad, 'to use his exact language is very
bad.'
Q. Did you talk with him on that occasion about his estate? A. Yes, sir, he told me that he
had three estates, one on Calle Magallanes, another on Calle Cabildo and the third on
Calle Juan Luna and besides he had money in the Monte de Piedad and Hogar Filipino.
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Q. From the question made by you and the answers given by Mr. Tomas Rodriguez on that
occasion, what is your opinion as to his mental capacity? A. The following: That the
memory of Tomas Rodriguez somewhat failed as to things of the present, but is all right with
regard to matters or facts of the past; that his ideas were incoherent; that the thought with
logic, argued even with power and generally in some of the interviews I have arrived at the
conclusion that Tomas Rodriguez had an initiative of his own, did not need that anybody
should make him any suggestion because he answered in such a way that if you permit me

now to show you my stenographic notes, they will prove to you conclusively that he had an
initiative of his own and had no need of anybody making him any question. (S. R. p. 72.)
Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time
that Rodriguez in the hospital had examined him, was likewise certain that Rodriguez possessed
sufficient mentality to make a will. Among other things, Doctor Domingo testified:
ARANETA: Q. Have you known D. Tomas Rodriguez?
Dr. DOMINGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician? A. Yes, sir.
Q. When did you begin to attend him as physician? A. On November 28, until his death.
Q. On November 28 or October 28, 1923, do you remember? A. I had been attending him
as physician from November 28th although it true that I had opportunities to see and
examine him during the months of October and November.
Q. What was the object of your visits or attendance during the months of October and
November? A. It was for the purpose of observing his mental state.
Q. Did you really examine his mental condition or capacity during the months of October and
November? A. Yes, sir.
Q. How many times did you visit him? A. I don't remember exactly but I visited him about
five or six times.
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Q. Please tell us the result of your examination during those months of October and
November? A. I examined him physically and mentally; I am not going to tell here the
physically result but the result of the mental examination, and that is: General Conduct: In
most of the times that I have seen him I found him lying on his bed, smoking a cigarette and
asked for a bottle of lemonade from time to time; I also observed that he was very careful
when throwing the ash of the cigarette, seeing to it that it did not fall on the blankets; he also
was careful not to throw the stub of the cigarette in any place to avoid fire; I made more
observations as to his general conduct and I found that sometimes Don Tomas could move
within the place although with certain difficulty. On two occasions I found him seated, once
seated at the table, seated in the chair, and other on a rocking chair. I also examined his
manner of talking and to all questions that I put to him he answered with a coherence and in
a relevant manner, although sometimes he showed eagerness and certain delay. I based
these points of my declaration on the questions which are usually asked when making a
mental examination for instance I asked him, What is your name, 'and he correctly answered
Tomas Rodriguez; I asked him if he was married and he answered 'No;' I asked him his
profession and he answered that formerly he was an attorney but that at the time I was
making the examination he was not practising the profession; I asked him with what he
supported himself and he said that he lived upon his income, he said verbatim, 'I live on my

income.' I also asked him what the amount of him income was and he answered that it was
about P900; I asked him what the source of this income was and he said that it came from
his property.
Q. Did you ask him about his property? A. No, at that time.
Q. Proceed. A. I also observed his emotional status and effectivity. I found it rather
superficial, and he oftentimes got angry due to his physical disease; I asked him if he had
any relatives and he answered correctly saying that he had. He mentioned Vicente Lopez,
Margarita Lopez, and Luz Lopez. As to his memory. His memory of the past. He very easily
remembered past events and when he described them he did it with such pleasure the he
used to smile afterwards if it was a fact upon which one must smile, His memory of recent
facts was very much lessened. I say this because on various occasions and not having
known me when he had a better memory, after I had seen him thrice he remembered my
name and he recognized me. Insight and judgment. I arrived at the conclusion that he had
fair knowledge of himself because he knew that he was sick and could not be moving with
ease, but he believed that he could perform with sufficient ease mental acts; his judgment
was also all right because I asked him this question: 'Supposing that you could find a bill of
P5 in the vestibule of a hotel, what would you do with it ?' He told me that he would take the
bill and give it to the manager in order that the latter may look for the owner if possible. His
reasoning. I found that he showed a moderated retardation in the flow of his thought,
especially with regard to recent events, but was quite all right as to past events, His capacity,
He believed that he was capable of thinking properly although what did not permit him to do
so was his physical decrepit condition. The conclusion is that his memory is lost for recent
events tho not totally and diminution of his intellectual vigor. This is in few words the result of
my examination.
Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke.
Doctor De los Angeles had been a witness in the gurardianship proceedings and had seen the
patient of November 6 and 7, 1923. Doctor Tietze had also been a witness in the guardianship case
and had visited the patient on November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze
and Burke together examined Rodriguez on January 17, 20, and 24, 1924. The three physicians
conducted a joint examination result, on March 15, 1924, they prepared and signed the following:
MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or
being confined in the Philippine General Hospital.
We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do
hereby certify as follows:
1. That we are physicians, duly registered under the Medical Act, and are in the actual
practice of the medical profession in the Philippines.
2. That on January 27th and 28th, and February 10th, 1924, at the Philippine General
Hospital, we three have with care the diligence jointly and personally examined the person of
said Tomas Rodriguez y Lopez; and previous to these dated, we have separately and partly
jointly observed and examined said patient on various occasions; Dr. Sixto de los Angeles, at

the patient's home, 246 Magallanes St., Manila, on November 6th and 7th , 1923; Dr.
Samuel Tietze, at the patient's home on November 9th and 12th, 1923, and at the Philippine
General Hospital no January 17th, 20th, and 24, 1924; and as a result of the medical
examinations and the history of the case we found and hereby certify to the following
conclusions:
(a) That he was of unsound mind suffering from senile dementia, or of mental impairment
exceeding to a pathological extent the unusual conditions and changes found to occur in the
involutional period of life.
(b) That he was under the influence of the above condition continuously, at least from
November, 1923, till the date of our joint reexamination, January 27th and 28th, and
February 10th, 1924; and that he would naturally have continued without improvement, as
these cases of insanity are due to organic pathological changes of the brain. This form of
mental disease is progressive in its pathological tendency, going on to progressive atropy
and degeneration of the brain, the mental symptoms, of course, running parallel with such
pathological basis.
(c) That on account of such disease and conditions his mind and memory were so greatly
impaired as to make him unable to know or to appreciate sufficiently the nature, effect, and
consequences of the business he was engaged in; to understand and comprehend the
extent and condition of his properties; to collect and to hold in his mind the particulars and
details of his business transactions and his relations to the persons who were or might have
been the objects of his bounty; and to free himself from the influences of importunities,
threats and ingenuities, so that with a relatively less resistance, he might had been induced
to do what others would not have done.
3. We have diagnosed this case as senile demential of the simple type, approaching the
deteriorated stage upon the following detailed mental examination:
(a) Disorder of memory. There was almost an absolute loss of memory of recent events,
to the extent that things and occurrences seen or observed only a few minutes previously
were completely forgotten. Faces and names of person introduced to him were not
remembered after a short moment even without leaving his bedside . He showed no
comprehension of the elemental routine required in the management of his properties, i.e.:
who were the lessees of his houses, what rents they were paying, who was the administrator
of his properties, in what banks he deposited his money or the amount of money deposited
in such banks. Regarding his personal relation, he forgot that Mr. Antonio Ventura is the
husband of his nearest woman cousin; the Mrs. Margarita Lopez was married, saying that
the latter was single or spinster, in spite of the fact that formerly, during the past twenty-five
years, he was aware of their marriage life, He did not know the names of the sons and
daughters of Mr. Vicente Lopez, one of his nearest relatives, even failing to name Mrs. Luz
Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the only
living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in
the hospital, though the latter died on January 7th, 1924. He did not recognized and
remember the name and face of Doctor Domingo, his own physician. However, the memory
for remote events was generally good, which is a characteristic symptom of senile dementia.

(b) Disorientation of time, place and persons. He could not name the date when asked
(day or month); could not name the hospital wherein he was confined; and failed to
recognize the fact that Doctor Domingo was his physician.
(c) Disorders of perception. He was almost completely indifferent to what was going on
about him. He also failed to recognize the true value of objects shown him, that is he failed to
recognized the 'Saturday Evening Post' nor would he deny that it was a will when presented
as such. He also failed to show normal intellectual perception. Making no effort to correlate
facts or to understand matters discussed in their proper light.
(d) Emotional deterioration. The patient was not known during his time of physical
incapacity to express in any way or lament the fact that he was unable to enjoy the
happiness that was due him with his wealth. As a matter of fact, he showed complete
indifference. He showed loss of emotional control by furious outbreaks over trifling matter
and actually behaved like a child; for example, if his food did not arrive immediately of when
his cigar was not lit soon, he would becomes abusive in his language and show marked
emotional outburst. If the servants did not immediately answer his call, he would break down
and cry as a child.
(e) Symptoms of decreased intellectual capacity. There was a laxity of the internal
connection of ideas. The patient has shown no insight regarding his own condition. He did
not appreciate the attitude of the parties concerned in his case; he would on several
occasion become suspicious and fail to comprehend the purpose of our examination. He
was inconsistent in his ideas and failed to grasp the meaning of his own statements. When
questioned whether he would make a will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When He was
informed, however, that he had made a will on January 31, 1924, he denied the latter
statement, and failed to explain the former. Although for a long time confined to bed and
seriously ill for a long period, he expressed himself as sound physically and mentally, and in
the false belief that he was fully able to administer his business personally.
His impairment of the intellectual field was further shown by his inability, despite his
knowledge of world affairs, to appreciate the relative value of the statement made by Doctor
Tietze as follows: 'We have here a cheque of P2,000 from the King of Africa payable to you
so that you may deposit it in the bank. Do you want to accept the cheque?' His answer was
as follows: 'Now I cannot give my answer. It may be a surprise.' Such answer given by a man
after long experience in business life, who had handled real estate property, well versed in
the transaction of cheques, certainly shows a breaking down of the above field. No proper
question were asked why the cheque was given by the King, who the King was, why he was
selected by the King of Africa, or if there is a King of Africa at present. He further shows
doubt in his mental capability by the following questions and answers:
"MARCAIDA: P. Tiene usted actualmente algn asunto en los tribunales de justicia
de Manila? -- R. No recuerdo en este momento.
"P. De tener usted algn asunto propio en los tribunales de justicia de Manila, a qu
abogado confiara usted la defensa del mismo?--R. Al Sr. Marcaida, como conocido
antiguo.

"P. Ha hablado usted y conferenciado alguna vez o varias veces en estos das, o
sea desde el 25 de octubre de 1923 hasta hoy, con algn abogado para que le
defendiera algn asunto ante el Juzgado de Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar, nombrara al Sr. Marcaida. (P. 5, deposition,
Nov. 19, 1923.)
"ARANETA: P. No recuerda usted que usted me ha encomendado como abogado
para que me oponga a que le declaren a usted loco o incapacitado?--R. S, seor,
quien ha solicitado? (P. 9, deposition, Nov. 19, 1923.)
"Dr. DOMINGO: P. Don Toms, me conoce usted? Se acuerda usted que soy el
Doctor Domingo?--R. S. (P. 7, sten. N., Jan. 28, 1924.)
"P. Quin soy, Don Toms, usted me conoce?--R. No s. (P. 6, sten. N., Feb. 10,
1924.)
"Dr. NGELES: P. Me conoce usted, D. Toms?--R. Le conozco de vista. (P. 6,
sten. N., Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Toms, de usted. Yo soy el Doctor ngeles, me
conoce usted?--R. De nombre.
"P. Este es el Doctor Burke, le conoce usted?--R. De nombre.
"P. Este es el Doctor Domingo, le conoce usted?--R. De vista.
"P. Este es el Doctor Burke, recuerda usted su nombre?--R. No. (P. 10, sten. N.,
Jan. 28, 1924.)
"P.Usted conoce a este Doctor? (Sealando al Doctor Burke).--R. De vista; su
nombre ya lo he olvidado, ya no me acuerdo.
"P.Usted nos ve a los tres? (Doctores ngeles, Burke y Tietze).--R. Ya lo creo.
"Dr. BURKE: P. Qu profesin tenemos? (Sealando a los Sres. ngeles, Burke y
Tietze).--R. YO creo que son doctores.
"P. Y lso dos? (Sealando a los Doctores ngeles y Tietze).--R. No. s.
"P. Y este seor? (Sealando al Doctor ngeles).--R. No me acuerdo en este
momento. (P. 4. And 5, sten. N., Feb. 10, 1924.)
(f) Other facts bearing upon the history of the case obtained by investigation of Doctor
Angeles:
I. Family History. His parents were noted to be of nervous temper and irritable.

II. Personal history. He was a lawyer, but did not pursue his practice, devoting the greater
part of his life to collecting antiquities, He was generally regarded by his neighbors as
miserly and erratic in the ordinary habits of life. He lead a very unhygienic life, making no
attempt to clean the filth of dirt that was around him. He was neglectful in personal habits. On
April, 1921, he suffered an injury to his forehead, from which he became temporarily
unconscious, and was confined in the Philippine General Hospital for treatment. He
frequently complained of attacks of dizziness and headache, following this injury; suffered
form a large hernia; and about two years ago, he was fined for failure in filing his income tax,
from which incident, we have reason to believe, the onset of his mental condition took place.
This incident itself can most probably be considered as a failure of memory. His condition
became progressively worse up to his death.
4. The undersigned have stated all the above facts contained in this certificate to the best of
our knowledge and belief.
Manila, P.I., March 15, 1924.
(Sgd.) SIXTO DE LOS ANGELES
W.B. BURKE, M.D.
SAMUEL TIETZE
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the
treatment record kept daily by the nurses, in which appear the nurse's remarks. (Exhibits 8-A, 8-B,
and 8-C.) In this connection, the testimony of the nurses is that Rodriguez was in the habit for no
reason at all of calling "Maria, where are my 50 centavos, where is my key." In explanation of the
observation made by the nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAMPO:
Q. Among your observations on the 1st of January, 1924, you say 'with pains all over the
body, and uttered some incoherent words of the same topics whenever is awakened.' How
could you observe that he had pains all over the body?
APOLONIO FLOREZA, nurse: A. I observed that by the fact that whenever I touched the
body of the patient he complained of some pain.
Q. On what part of the body did you touch him? A. On all the parts of his body.
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Q. How did you touch him, strongly or not? A. Slightly.

Q. When you touched him slightly, what did he do? A. He said that it was aching.

Q. What words did he say when, according to your note, he uttered incoherent words
whenever he awakes? A. As for instance, 'Maria,' repeating it 'Where are my 50 centavos,
where is my key?'
Q. Did you hear him talk of Maria? A. Only the word Maria.
Q. How long approximately was he talking uttering the name of 'Maria, Where are my 50
centavos,' and where is my key? A. For two or three minutes.
Q. Can you tell the court whether on those occasions when he said the name of Maria he
said other words and was talking with somebody? A. He was talking to himself.
Q. This remark on Exhibit 8-B when was it written by you? A. January 2, 1924.
Q. In the observation correspondingly to January 2, 1924 you say, 'With pains over the body,'
and later on talked too much whenever patient is awakened.' How did you happen to know
the pain which you have noted here? A. The pains all over the body, I have observed them
when giving him baths.
Q. Besides saying that it ached when you touched the body, do you know whether he did any
extraordinary thing? A. You mean to say acts?
Q. Acts or words? A. Yes, sir, like those words which I have already said which he used to
say Maria, the key, 50 centavos.
Q. You say that he called Maria. What did he say about Maria on that date January 2, 1924?
A. He used to say Maria where is Maria?
Q. On that date January 2, 1924, did you answer him when he said Maria? A. No sir.
Q. In this observation of yours appearing on page 8-C you say among other things with pain
all over the body and shouted whenever he is given injection.' Did you really observe this in
the patient? A. Yes, sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
ARANETA: Exception.
A. In a loud voice.
Q. Besides shouting do you remember whether he said anything? A . He repeated the
same words I have said before Maria the 50 centavos the key.

Q. When did this observation occur which appear on page 8-C? A. On January 3, 1924.
(S. R. p. 5595.)
On certain facts pertaining to the condition of Tomas Rodriguez there is no dispute. On January 3,
1924, Rodriguez had reached the advanced age of 76 years. He was suffering from anemia, hernia
inguinal, chronic dypsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo and
Herrera admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke,
further declare that his memory however for remote events was generally good. He was given to
irrational exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera certify that the intellectual faculties of the
patient are "sound, except that his memory is weak," and that in executing the will the testator had
full understanding of the act he was performing and full knowledge of the contents thereof, Doctors
De Los Angeles, Tietze and Burke certify that Tomas Rodriguez was of unsound mind and that they
diagnosed his case as senile dementia of the simple type approaching the deteriorated stage.
Without attempting at this stage to pass in judgment on the antagonistic conclusions of the medical
witnesses, or on other disputed point, insofar as the facts are concerned, a resolution of the case
comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make
a will, or had he passed so far along in senile dementia as to require the court to find him of
unsound? We leave the facts in this situation to pass on to a discussion of the legal phases of the
case.
B. Law. The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the
testator be of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing
mind." One of the grounds for disallowing a will is "If the testator was insane or otherwise mentally
incapable of the execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of testamentary capacity: "'Testamentary
capacity is the capacity to comprehend the nature of the transaction in which the testator is engaged
at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument
will distribute his property among the objects of his bounty.'" (Bugnao vs. Ubag [1909], 14 Phil., 163,
followed in Bagtas vs. Paguio [1912], 46 Phil., 701.) The mental capacity of the testator is
determined as of the date of the execution of his will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the courts only later to be rejected
as incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of
mind, weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly
or jointly to show testamentary incapacity. Each case rests on its own facts and must be decided by
its own facts.
There is one particular test relative to the capacity to make a will which is of some practical utility.
This rule concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural
or unnatural? The mere exclusion of heirs will not, however, in itself indicate that the will was the
offspring of an unsound mind.
On the issue of testamentary capacity, the evidence should be permitted to take a wide range in
order that all facts may be brought out which will assist in determining the question. The testimony of

subscribing witnesses to a will concerning the testator's mental condition is entitled to great weight
where they are truthful and intelligent. The evidence of those present at the execution of the will and
of the attending physician is also to be relied upon. (Alexander on Willis, vol. I, pp. 433, 484;
Wharton & Stille's Medical Jurisprudence, vol. I pp. 100 et seq.)
The presumption is that every adult is sane. It is only when those seeking to overthrow the will have
clearly established the charge of mental incapacity that the courts will intervene to set aside a
testamentary document. (Hernaez vs. Hernaez [1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being under guardianship at the time he made
his will. Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the
effect of the judgment is conclusive with respect to the condition of the person. To this statement we
cannot write down our conformity. The provisions of the cited section were taken from California, and
there the Supreme court has never held what is now urged upon us by the appellee. The rule
announced that in some states, by force of statute, the finding of insanity is conclusive as to the
existence of insanity during the continuance of adjudication, is found to rest on local statutes, of
which no counterpart is found in the Philippines. (32 C.J., 647; Gridley vs. Boggs [1882], 62 Cal.,
190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.) Even where the question of
insanity is out in issue in the guardianship proceedings, the most that can be said for the finding is
that it raises a presumption of incapacity to make a will but does not invaluable the testament if
competency can be shown. The burden of providing sanity in such case is cast upon the proponents.
It is here claimed that the unsoundness of mind of the testator was the result of senile dementia.
This is the form of mental decay of the aged upon which will are most often contested. A Newton,
Paschal, a Cooley suffering under the variable weather of the mind, the flying vapors of incipient
lunacy," would have proved historic subjects for expert dispute. Had Shakespeare's King Lear made
a will, without any question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms and stages. To constitute
complete senile dementiathere must be such failure of the mind as to deprive the testator of
intelligent action,. In the first stages of the diseases, a person may possess reason and have will
power. (27 L. R. A., N. S. [1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I. pp. 791 et
seq.; Schouler on Wills, vol. I, pp. 145 et seq.)
It is a rather remarkable coincidence that of all the leading cases which have gone forth from this
court, relating to the testator having a sound and disposing mind, and which have been brought to
our notice by counsel, every one of them has allowed the will, even when it was necessary to
reverse the judgment of the trial court. A study of these cases discloses a consistent tendency to
protect the wishes of the deceased whenever it be legally possible. These decisions also show great
tenderness on the part of the court towards the last will and testament of the aged. (See Hernaez vs.
Hernaez [1903], 1 Phil., 689, per Arellano, C. J., In the matter of the will o f Butalid [1908] 10 Phil.,
27 per Arellano, C. J.; Bugnao vs. Ubag [1909] 14. Phil., 163, per Carson, J.; Macapinlac vs.
Alimurong [1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio [1912], 22 Phil., 227, per Trent,
J.; Galvez vs. Galvez [1913], 26 Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin [1923],
44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson [1922], 46 Phil., 701, per Villamor, J.) Because
of their peculiar applicability, we propose to make particular mention of four of the earlier cases of
this court.

In the case of Hernaez vs. Hernaez supra the subject of the action was the will executed by Dona
Juana Espinosa. The annulment of the will was sought first upon the ground of the incapacity of the
testatrix. She was over 80 years of age, so ill that three days extreme unction, and two days
afterwards she died. Prior thereto she walked in a stooping attitude and gave contradictory orders,"
as a result of her senile debility." The chief Justice reached the conclusion that neither from the facts
elicited by the interrogatories nor the documents presented "can the conclusion be reached that the
testatrix was deprived of her mental faculties." The will was held valid and efficacious.
In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that
Dominga Butalid at the date of the execution of the document was not in the date of the execution of
the document was not in the free use of her intellectual powers, she being over 90 years of age,
lying in bed seriously ill, senseless and unable to utter a single word so that she did not know what
she was doing when she executed the will while the document was claimed to have been executed
under the influence and by the direction of one of the heirs designated in the will. Yet after an
examination of the evidence in the will. Yet after an examination of the evidence in the will. The Chief
Justice rendered judgment reversing the judgment appealed from and declaring the will presented
for legalization to be valid and sufficient.
In the case of Bugnao vs. Ubag, supra the court gave credence to the testimony of the subscribing
witnesses who swore positively that at the time of the execution of the will the testator was of sound
mind and memory. Based on these and other facts, Mr. Justice Carson, speaking for court, laid down
the following legal principles:
Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary known as insanity or idiocy there are numberless degrees of
mental capacity or incapacity and while on one hand it had been held that mere weakness of
mind or partial imbecility from disease of body, or from age, will to render a person incapable
of making a will a weak or feeble minded person may make a valid will provided he has
understanding and memory sufficient to enable him to know what he is about and how or to
whom he is disposing of his property' (Lodge vs. Lodge, 2 Houst. [Del.] 418); that, "To
constitute a sound be unbroken or unimpaired, unshattered by disease or otherwise (Sloan
vs. Maxwell, # N. J. Eq., 563); that it has not been understood that a testator must possess
these qualities (of sound and disposing mind and memory) in the highest degree. . . .Few
indeed would be the wills confirmed it this is correct. Pain, sickness, debility of body from age
or infirmity, would according to its violence or duration in a greater or less degree, break in
upon, weaken, or derange the mind, but the derangement must be such as deprives him of
the rational faculties common to man' (Den. vs. Vancleve, 5 N. J. L., 680); and that Sound
mind does not mean a perfectly balanced mind. The question of soundness is one of degree'
(Boughton vs. Knight. L. R., 3 P. & D., 64; 42 L. P. P., 25); on the other hand, it has been held
that testamentary incapacity does not necessarily require that a person shall actually be
insane or of an unsound mind. Weakness of intellect, whether it arises from extreme old age,
from disease, or great bodily infirmities of suffering, or from all these combined, may render
the testator in capable of making a valid will, providing such weakness really disqualifies for
from knowing or appreciating the nature, effects, or consequences of the act she is engaged
in (Manatt vs. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302).
In the case of Nagtas vs. Paquio, supra, the record shows that the testator for some fourteen or
fifteen years prior to the time of his death suffered from a paralysis of the left side of his body, that a
few years prior to his death his hearing became impaired and that he had lost the power of speech.

However, he retained the use of his hand and could write fairly well. Through the medium of signs,
he was able to indicate his wishes to his family. The will was attacked n the ground that the testator
lacked mental capacity at the time of its execution. The will was nevertheless admitted to probate,
Mr. Justice Trent, speaking for the court, announcement the following pertinent legal doctrines:
* * * There are many cases and authorities which we might cite to show that the courts have
repeatedly held that mere weakness of mind and body, induced by age and disease do not
render a person incapable of making a will. The law does not require that a person shall
continue in the full enjoyment and use of his pristine physical and mental powers in order to
execute a valid will. If such were the legal standard few indeed would be the number of wills
that could meet such exacting requirements. The authorities, both medical and legal are
universal in the statement that the question of mental capacity is one of degree and that
there are many graduations from the highest degree of mental soundness to the lowest
conditions of diseased mentality which are denominated as insanity and idiocy.
The right to dispose of property by testamentary disposition is as sacred as any other right
which a person may exercise and this right should be nullified unless mental incapacity is
established in a positive and conclusive manner. In discussing the question of testamentary
capacity, it is stated in volume 28, page 70, of the American and English Encyclopedia of
Law that
'Contrary to the very prevalent lay impression perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted with a variety of mental weakness,
disorders or peculiarities and still be capable in law of executing a valid will.' (See the
numerous cases there cited in support of this statement.)
The rule relating to testamentary capacity is stated in Buswel on Insanity, section 365 and
quoted with approval in Campbell vs. Campbell (130 Ill. 466) as follows:
To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly
unbroken unimpaired or unshattered by disease or otherwise or that the testator should be in
the full possession of his reasoning faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, what was the degree of memory possessed by the testator as
had, he a disposing memory? Was he able to remember the property he was about to
bequeth the manner of distributing it and the object of his bounty? In a word, were his mind
and memory sufficiently sound to enable him to know and understand the business in which
he was engaged at the time when he executed his will.' (See authorities there cited)
In Wilson vs. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the
case: The testator died at the age of nearly 102 years. In his early years he was an intelligent
and well informed man. About seven years prior to his death he suffered a paralytic stroke
and from that time his mind and memory were much enfeebled. He became very dull of
hearing and in consequence of the shrinking of his brain he was affected with senile cataract
causing total blindness. He became filthy and obscene in his habits, although formerly he
was observant of the proprieties of life. The court, in commenting upon the case, said:

Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to
make a will, if sufficient intelligence remains. The failure of memory is not sufficient to create
the incapacity, unless it be total or extend to his immediate family to property. . . .
xxx

xxx

xxx

Dougal (the testator) had lived over one hundred years before he made the will and his
physical and mental weakness and defective memory were in striking contrast with their
strength in the meridian of his life. He was blind; not deaf, but hearing impaired; his mind
acted slowly, he was forgetful of recent events, especially of names and repeated questions
in conversation; and sometimes, when aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence are of the opinion that his reason was so far gone that
he was incapable of making a will, although they never heard him utter an irrational
expression.
In the above case the will was sustained. In the case at bar we might draw the same contract
as was pictured by the court in the case just quoted. . . .
The particular difference between all of the Philippine case which are cited and the case at bar are
that in none of the Philippine cases was there any declaration of incomplicated and in none of them
were the facts quite as complicated as they are here. A case in point where the will was contested,
because the testator was not of sound and disposing mind and memory and because at the time of
the making of the will he was acting under the undue influence of his brothers and where he had a
guardian when he executed his will, is Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering
the opinion of the court, in part said:
It is contended by contestant's counsel that on the day said pretended will purports to have
been executed, Lowell was declared incompetent by a court which had jurisdiction of the
person and subject-matter and that the decree therein appointing a guardian of his person
and estate raises the distable presumption that he did not possess sufficient testamentary
capacity at the time to overcome which required evidence so strong as to leave no
reasonable doubt as to his capacity to make a valid will, and the testimony introduced by the
proponent being insufficient for that purpose the court erred in admitting it to probate.
The appointment of a guardian of a person alleged to be non compos mentis, by a court
having jurisdiction must necessarily create a presumption of the mental infirmity of the ward;
but such decree does not conclusively show that the testamentary capacity of the person
under guardianship is entirely destroyed and the presumption thus created may be
overcome by evidence proving that such person at the time he executed a will was in fact of
sound and disposing mind and memory: Stone vs. Damon, 12 Mass., 487; Breed vs. Pratt,
18 Pick, 115: In re Slinger's Will, 72 Wis., 22 (37 N. W. 236).
The testimony shows that the testator retained a vivid recollection of the contents of the
books he had read and studied when he was young but that he could not readily recall to his
mind the ordinary incidents of his later life. The depth and intensity of mental impression
always depend upon and are measured by the degree of attention given to the perception of
truth, which demands reflection; and hence the inability of a person to recollect events and
hence the inability is evidence of mental decay, because it manifest a want of power on

concentration of the mind. The aged live in the past and the impression retained in their
minds are those that were made in their younger days, because at that period of their lives
they were able to exercise will power by giving attention. While the inability of a person of
advanced years to remember recent events distinctly undoubtedly indicates a decay of the
human faculties, it does not conclusively establish senile dementia, which is something more
than a mere loss of mental power, resulting from old age and is not only a feeble condition of
the mind but a derangement thereof. . . . The rule is settled in this state that if a testator at
the time he executes his will understand the business in which he is engaged and has a
knowledge of his property and how he wishes to dispose of it among those entitled to his
bounty, he possess sufficient testamentary capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.
xxx

xxx

xxx

It is contented by contestant's counsel that if Lowell at the time he executed the pretended
will, was not wholly lacking in testamentary capacity, he was, in consequence of age ill
health, debility of body and infirmity of will power, Andrew and Joseph having knowledge
thereof took advantage of his physical and mental condition and unduly influenced him to
device and bequeth his property in the manner indicated, attempting thereby to deprive the
contestant of all interest therein except such as was given her by statute. . . . Assuming that
he was easily persuaded and that his brothers and the persons employed by them to care for
him took advantage of his enfeebled condition and prejudiced his mind against the
contestant did such undue influence render the will therefore executed void? . . . When a will
has been properly executed, it is the duty of the courts to uphold it, if the testator possessed
a sound and disposing mind and memory and was free from restraint and not acting under
undue influence notwithstanding sympathy for persons legally entitled to the testator's bounty
and a sense of innate justice might suggest a different testamentary disposition.
Believing, as we do, that the findings of the circuit court are supported by the weight of the
testimony its decree is affirmed.
Insofar as the law on testamentary capacity to make a will is concerned and carrying alone one step
further the question suggested at the end of the presentation of the facts on the same subject a
resolution of the case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess
sufficient mentality to make a will which would meet the legal test regarding testamentary capacity
and have the proponents of the will carried successfully the burden of proof and shown him to be of
sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. it is now for us to say if the facts justify this
finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his administrator. The latter subsequently
became his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the
most confidence in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured Maximino Mina to prepare the will, and it was

Luz Lopez de Bueno who appears to have gathered the witnesses and physicians for the execution
of the will. This faction of the Lopez family was also a favor through the orders of Doctor Domingo as
to who could be admitted to see the patient.
The trial judge entertained the opinion that there existed "a preconceived plan on the part of the
persons who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge
may be correct in this supposition. It is hard to believe, however, that men of the standing of Judge
Mina, Doctors Calderon, Domingo, Herrera, and De Asis and Mr. Legarda would so demean
themselves and so fully their characters and reputation as to participate in a scheme having for its
purpose to delude and to betray an old man in his age, rather named was acting according to the
best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the
attitude of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity
toward them, it seems fairly evident that even if the will had been made in previous years when
Rodriguez was more nearly in his prime, he would have prepared somewhat a similar document.
B. LAW. One of the grounds for disallowing a will is that it was procured by undue and improper
pressure and influence on the art of the beneficiary or some other person for his benefit (Code of
Civil Procedure, sec., 634[4]). Undue influence, as here mentioned in connection with the law of wills
and as further mentioned in the Civil Code (art. 1265), may be defined as that which compelled the
testator to do that which is against the will from fear the desire of peace or from other feeling which
is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issued of fact and law in this case pertaining to testamentary capacity: Did
Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet
the legal test regarding testamentary capacity and have the proponents of the will carried
successfully the burden of proof and shown him to be of sound mind on that date?
Two of the subscribing witnesses to the will, one a physician clearly to the regular manner in which
the will was executed and to the testator's mental condition. The other subscribing witness, also, a
physician on the contrary testified to a fact which, if substantiated, would require the court to disallow
the will. The attending physician and three other eminent members of the medical fraternity, who
were present at the execution of the will, expressed opinions entirely favorable to the capacity of the
testator. As against this we have the professional speculations of three other equally eminent
members of the medical profession when the will was executed. The advantage on those facts is all
with those who offer the will for probate.
The will was short. It could easily be understood by a person in physical distress. It was reasonable,
that is, it was reasonable if we take into account the evident prejustice of the testator against the
husband of Margarita Lopez.
With special reference of the definition of testamentary capacity, we may say this: On January 3,
1924, Tomas Rodriguez, in our opinion comprehended the nature of the transaction in which he was
engaged. He had two conferences with his lawyer, Judge Mina, and knew what the will was to
contain. The will was read to him by Mr. Legarda. He signed the will and its two copies in the proper
places at the bottom and on the left margin. At that time the testator recollected the property to be

disposed of and the persons who would naturally be supposed to have claims upon him While for
some months prior to the making of the will he had not manage his property he seem to have
retained a distinct recollection of what it consisted and of his income. Occasionally his memory failed
him with reference to the names of his relatives. Ordinarily, he knew who they were, he seemed to
entertain a prediliction towards Vicente F. Lopez as would be natural since Lopez was nearest in
which the instrument distributed the property naming the objects of his bounty. His conversations
with Judge Mina disclosed as insistence on giving all of his property to the two persons whom he
specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been
physically decrepit, may have been weak in intellect, may have suffered a loss of memory, may have
had a guardian and may have a been extremely eccentric, but he still possessed the spark of reason
and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to
enforce that intention, which the law terms "testamentary capacity." That in effect is the definite
opinion which we reach after an exhaustive and exhausting study of a tedious record, after weighing
the evidence for the oppositors, and after giving to the case the serious consideration which it
deserves.
The judgment of the trial court will be set aside and the will of Tomas Rodriguez will be admitted to
probate without special pronouncement as to costs in this instance.
EN BANC
G.R. No. L-39033

November 13, 1933

In re will of the late Matea Abella. MONS. SANTIAGO SANCHO, applicant-appellee,

vs.
MARCIANA ABELLA, opponent-appellant.
Sotto and Astilla for appellant.
B. Quitoriano for appellee.

VILLA-REAL, J.:
This is an appeal taken by the opponent Marciana Abella from the judgment rendered by the Court
of First Instance of Ilocos Sur, the dispositive part of which reads as follows:
Wherefore, this court is of the opinion, and so holds, that the opposition filed by Marciana
Abella is without merit and, therefore, it is hereby denied. The application filed herein is
granted and the document, Exhibit A, is hereby ordered and decreed probated as the last will
and testament of the late Matea Abella. So ordered.
In support of her appeal, the appellant assigns the following alleged errors in the decision of the
court a quo, to wit:

1. The lower court erred in holding that Matea Abella was in the full enjoyment of her mental
faculties and executed the document, Exhibit A, as a true expression of her last will.
2. The lower court erred in holding that the requirements of the law have been complied with
in the execution of the will, Exhibit A.
3. The lower court erred in holding that when the late Matea Abella affixed her alleged
signatures to the will, Exhibit A, she did not act under the illegal and undue influence of
certain legatees.
4. The lower court erred in decreeing the probate of the will, Exhibit A.
The following facts have been proven by a preponderance of evidence presented during the trial, to
wit:
The testatrix, Matea Abella, resident of the municipality of Sinait, Ilocos Sur, had been informed that
Dr. Antonio Querol of San Fernando La Union, was a good physician. On April 13, 1932, she left her
home situated in the said municipality of Sinait, accompanied by her niece, Filomena Inay, to consult
the said physician in his clinic in San Fernando, La Union, stopping at the convent of the parish
church of the said municipality, in charge of Father Cordero with whom she was acquainted he
having been the parish priest of Sinait. During her stay in the said convent, she went to Dr. Antonio
Querol's clinic twice within the period of one week accompanied by her aforesaid niece, Filomena
Inay, to consult the said physician who, after submitting her to a general medical examination, found
that she was suffering from dyspepsia and cancer of the stomach.
On or about April 26, 1932, Matea Abella ordered a sexton of the convent to call Attorney Teodoro R.
Reinoso to whom she expressed her desire to make a will, in the presence of the Father Cordero's
sister, Father Zoilo Aguda, Macario Calug and the fiscal of the convent. Inasmuch as the aforesaid
attorney had to attend to other business, he could not finish his interview with the testatrix on the first
day and had to continue it the following day, also in the presence of Father Cordero, his sister,
Filomena Inay and some children who were then at the convent. Inasmuch as he did not finish the
interview on the second day, the said attorney returned again on the afternoon of the 28th and
continued it in the presence of the same persons who entered and left the sala. At the end of the
interview, Matea Abella ordered he niece, Filomena Inay, to bring her some papers which were in her
trunk, which she delivered to the said attorney. After the will had been drafted in Ilocano, the dialect
of the testatrix, Macario Calug read it to her and she approved it. When the will had been copied
clean, it was again read to the testatrix and she express her approval thereof, but inasmuch as it
was rather late at night, she did not care to sign the same suggesting that it be postponed to the
following day, April 29, 1932, which was done. At about 7:30 o'clock on the morning of April 29, 1932,
the signing of the will took place in the corridor of the convent. The testatrix Matea Abella was the
first to sign it on a table in the presence of each and every one of the instrumental witnesses thereto
and of other persons, including Father Cordero. After the testatrix, each of the instrument witnesses
signed in the presence of the testatrix and of each and every one of the other witnesses. After the
will had been signed, Attorney Teodoro R. Reinoso delivered the original and the copies thereof to
the testatrix, retaining one for his file. On July 3, 1932, Matea Abella died of the senile debility in the
municipality of Sinait at the age of 88 years.
The opponent herein attempted to prove that the testatrix was deaf and that her eyesight was
defective; that when one moved away from her and again approached her she was unable to

recognize him; that it was necessary to shout into her ear to call her for meals; that she used to
urinate on her clothes without being aware of it; that she had a very poor memory inasmuch as she
used to try to collect from her debtors in spite of the fact that they had already paid their debts; that
once, although she had sold a parcel of land for P60 she said she had sold it for P160; that she was
unable to go downstairs without assistance; that when she was called at mealtime she used to
answer: "Why, I have already eaten"; that she could not remember her properties nor the names of
her tenants; that she could no longer read; that she often repeated to her tenants the same
questions regarding their crops; that she had been suffering from the disabilities for more than two
months previous to her death; that the deceased complained of headache and of stomachache; that
she already began to be dotty five years before, and particularly a few days previous to her death;
that in her will she bequeathed properties which she had already donated to other persons.
We are face to face with two divergent theories regarding the mental state of the testatrix Matea
Abella at the time of the execution of her will, Exhibit A. The opponent claims that, inasmuch as the
testatrix was 88 years of age when she made her will, she was already suffering from senile debility
and therefore her mental faculties were not functioning normally anymore and that she was not fully
aware of her acts. As an indication of her senile debility, she attempted to prove that the testatrix had
very poor memory in connection with her properties and interest; that she could not go downstairs
without assistance, and that she could not recall her recent acts.
On the other hand, as to the mental sanity of the testatrix at the time of the execution of her will, we
have the undisputed fact of her having left her home in Sinait, Ilocos Sur, on April 13, 1932, in order
to go to San Fernando, La Union, to consult Dr. Antonio
Querol of whose ability she had heard so much regarding her headaches and stomach trouble,
stopping at the convent of the parish church; the fact of her having walked twice to the aforesaid
doctor's clinic, accompanied by her niece, Filomena Inay; the fact that she had personally furnished
the aforesaid doctor with all the necessary data regarding the history of her illness the fact of her
having brought with her in her trunk the deeds to her properties; the fact of her having called for
Attorney Teodoro R. Reinoso; the fact of her having personally furnished said attorney all the data
she wished to embody in her relative to her properties and the persons in whose favor she wished to
bequeath them; the fact of her not wishing to sign her will on the night of April 28, 1932, but the
following day, in order to be able to see it better, and the fact of her having affixed her signature, in
her own handwriting, to the original as well as to the copies of her will which consisted of nine pages.
All these data show that the testatrix was not so physically weak, nor so blind, nor so deaf, nor so
lacking in intelligence that she could not, with full understanding thereof, dispose of her properties
and make a will. Neither senile debility, nor blindness, nor deafness, nor poor memory, is by itself
sufficient to incapacitate a person for making his ill (Avelino vs. De la Cruz, 21 Phil., 521; Bagtas vs.
Paguio, 22 Phil., 227; Jocson vs. Jocson, 46 Phil., 701; Amata and Almojuela vs. Tablizo, 48 Phil.,
485; Torres and Lopez de Bueno vs. Lopez, 48 Phil., 772; 28 R.C.L., p. 94, par. 44). The mere fact
that in her will Matea Abella disposed of properties, which she had already donated to other persons
at a prior date, is not an indication of mental insanity. At most it constitutes forgetfulness or a change
of mind, due to ignorance of the irrevocability of certain donations.
lawphil.net

It is insinuated that the testatrix has been unduly influenced in the execution of her will. There is
nothing in the records establishing such claim either directly or indirectly. The fact of her having
stopped at the convent of the parish church of San Fernando, La Union, is not unusual in the
Philippines where, due to lack of hotels, the town convents are usually given preference by strangers
because they are given better accommodations and allowed more freedom. In the present case, the
testatrix Matea Abella was a stranger in San Fernando, La Union. Inasmuch as Father Cordero, the

parish priest of the said town, was well known to her having served in the church of Sinait, Ilocos
Sur, in the same capacity, she did not have any difficulties in obtaining accommodations in his
convent. The fact that Matea Abella stopped at a convent and enjoyed the hospitality of a priest who
gave her accommodations therein, nor the fact that the will was executed in the convent in question
in the presence of the parish priest and witnessed by another priest, could certainly not be
considered as an influence which placed her under the obligation to bequeath of her property to the
bishop of said diocese.
In view of the foregoing considerations, we are of the opinion and so hold: (1) That neither senile
ability, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the
presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties,
when there is sufficient evidence of his mental sanity at the time of the execution of the will; and (2)
that neither the fact of her being given accommodations in a convent, nor the presence of the parish
priest, nor a priest acting as a witness, constitutes undue influence sufficient to justify the annulment
of a legacy in favor of the bishop of a diocese made in her will by a testatrix 88 years of age,
suffering from defective eyesight and hearing, while she is stopping at a convent within the
aforestated diocese.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the
costs against the appellant. So ordered.
FIRST DIVISION
G.R. Nos. L-46430-31 July 30, 1979
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ,
and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners,
vs.
COURT OF APPEALS, AMPARO ALSUA BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO
ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.

GUERRERO, J.:

1wph1.t

This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R
and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate
of the win of Don Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil
Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court 1 denied the probate of the will, declared null and void the two sales subject of the
complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private
respondents, the sum of Five Thousand Pesos (P5,000.00), to render an accounting of the properties in
their possession and to reimburse the latter the net gain in the proportion that appertains to them in the
properties from the date of the firing of the complaint up to complete restoration plus Fifty Thousand
Pesos (P50,000.00) as attorney's fees and costs.

The antecedent events leading to the filing of these two consolidated actions are the following.
On November 25, 1949, Don Jesus Alsua and his wife, Do;a Florentina Rella, both of Ligao, Albay,
together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this
judicial guardian Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized
agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing
properties of the spouses Don Jesus and Do;a Florentina enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to
wit:
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(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua
spouses, which inventory consists of 97 pages, all of them signed by the spouses
and all the above named heirs in the left margin of every page (parafo primers).
(2) An acknowledgment of the spouses that all the properties described in the
inventory (Annex A) are conjugal properties with the exception of five parcels of land
Identified with the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which
are paraphernal properties of the late Do;a Tinay (segundo parafo).
(3) An acknowledgment that during their marriage, they had nine children but five of
them died minors, unmarried (parafo tercero y cuatro).
(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to
avoid Possible misunderstanding among their children concerning the inheritance
they are entitled to in the event of death of one of them they have decided to
effectuate an extrajudicial partition of all the properties described in Annex "A"
thereto under the following terms and conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with
the improvements thereon specifically described from pages 1-12 of said inventory or, 34 parcels of
land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the
improvements thereon specifically described from pages 12-20 of said inventory or, 26 parcels of
land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with
the improvements thereon specifically described from pages 20-33 of said inventory or, 47 parcels of
land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties
with the improvements thereon specifically described from pages 33-47 of said inventory or, 47
parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of
P58,830.00.
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(a) Each and every one of the heirs named above acknowledge and admit that the
totality of the properties allotted and adjudicated to the heirs as described in the
preceding paragraph, constitute one half of the properties described in Annex "A",
including any amount of cash deposited.

(b) That all the heirs acknowledge and admit that all the properties assigned to them
as their hereditary portion represent one-half not only of the conjugal properties but
includes the paraphernal properties waiving now and forever any complaint or
claim they have or they may have concerning the amount, value, extension and
location of the properties that are allotted to each and everyone. They also waive any
claim they have or they may have over the remaining portion of the properties, which
spouses reserved for themselves.
(c) That in case of death of one of the spouses, each and everyone of the heirs
acknowledge that the properties which are left in the possession of the surviving
spouse, including any amount in cash, are even less than the one- half that should
correspond in absolute ownership as his legitimate participation in the conjugal
properties. In consequence they waive any claim that they have or may have over
said portion of said properties or any amount in cash during the lifetime of the
surviving spouse, including any right or claim they have or they may have over the
paraphernal properties of Do;a Tinay in the event the surviving spouse is Don
Jesus.
(d) The spouses on their part in case of death of any one of them, the surviving
spouse waives any claim he or she may have over the properties assigned or
adjudicated to the heirs under and by virtue of this deed. The properties which were
reserved for them (the spouses) should be considered as his or her legitimate
participation in the conjugal properties and the fair compensation of his or her
usufruct on the properties that the surviving spouse reserved for himself or herself
which shag be distributed in equal shares among the heirs upon his or her death
unless said properties of some of them have been disposed of during the lifetime of
the surviving spouse.
(e) Any heir who may dare question the validity and legitimacy of the provision
contained herein shall be under obligation to pay to the other heirs, in the concept of
damages and prejudice, the sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the successors of the herein heirs.
(g) In the event of death of one of the spouses, the properties assigned or
adjudicated to each and everyone of the heirs shall be considered as his share or
participation in the estate or as his inheritance left by the deceased and each heir
shall become the absolute owner of the properties adjudicated to him under this
deed.
On January 5, 1955, Don Jesus and Do;a Florentina, also known as Do;a Tinay separately
executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in
conformity and in implementation of the extrajudicial partition of November 25, 1949. Their
holographic wills similarly provided for the institution of the other to his or her share in the conjugal
properties, the other half of the conjugal assets having been partitioned to constitute their legitime
among their four living children in the Extrajudicial Partition of 1949. The wigs also declared that in
the event of future acquisitions of other properties by either of them, one-half thereof would belong to
the other spouse, and the other half shall be divided equally among the four children. The
holographic will of Do;a Tinay written in Spanish reads, as translated:
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TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua,
resident of and with postal address in the Municipality of Ligao, Province of Albay,
Philippines, being in the full possession of my mental and physical faculties freely
and spontaneously execute this my last will and testament in my handwriting and
signed by me and expressed in the Spanish language which I speak, write and
understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of
Albay, and in which I ordain and provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua
and begot nine (9) children with him, four (4) of whom are still living and they are
Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. The other five (5)
died during their minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our
conjugal union, and as a result of our efforts and industry, we were able to acquire
conjugal properties consisting of abaca (abales) and cacao lands and urban lands
registered in the office of the Registry of Property of the Province of Albay and in the
City of Manila.
Third: That I institute as my heirs with right to inherit the following- my spouse Don
Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to
my children Francisco Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando
Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando
Buenviaje, in equal parts. It is to be understood, however, that the other half that
corresponds as legitime to my above named children have already been given to
them, pursuant to a document dated November 25, 1949 and ratified on the same
day, month and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag.
15; Lib. 11; Series of 1949) enjoining each and everyone of them to respect and
faithfully comply with each and every clause contained in the said document.
Fourth: That should I acquire new properties after the execution of this testament, the
same shall be partitioned among my spouse and above named children or the
children mentioned in above par. 3 in the same proportion that is, one-half (1 1/2) to
my spouse; and the other half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to
post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this
5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines.
(SGD.) FLORENTINA
R. DE ALSUA
(Joint Record on appeal pp. 420-423, CA-G.R. No. 54492-R)

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As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same
day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Do;a Tinay filed before the Court of First Instance of
Albay their respective petitions for the probate of their respective holographic wins which were
docketed as Special Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No.
485 (Do;a Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Do;a Tinay executed their mutual and reciprocal
codicils amending and supplementing their respective holographic wins. Again, the codicils similarly
acknowledged and provided that one-half of all the properties of the spouses, conjugal and
paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the
"Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses
Don Jesus and Do;a Tinay) the other half or those not disposed of to the said legitimate heirs under
the above agreement of partition, and that they mutually and reciprocally bequeathed unto each
other their participation therein as well as in all properties which might be acquired subsequently.
Each spouse also declared that should she or he be the surviving spouse, whatever belongs to him
or her or would pertain to him or her, would be divided equally among the four children. It was also
declared in both codicils that upon the death of either of the spouses, the surviving spouse was
designated mutually and reciprocally as the executor or administrator of all the properties reserved
for themselves.
The codicil executed by Do;a Tinay, written in Spanish reads, as translated:

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CODICIL
This codicil supplements and amends the preceding testament. That my spouse and
I have agreed to divide the properties which we have acquired into 2 parts. The 1/2
that would correspond to me covers all the properties that I have partitioned among
my children in the Document of Partition dated November 25, 1949 before Notary
Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; Series of
1949) (and) even as the properties which by reason of this testament I leave to my
husband as his share and the other half that corresponds to my husband constitutes
an the properties that up to now have not been disposed of, particularly the urban
lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of
Manila, with the exception of that portion that I bequeath to my husband as his
inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and
my children Francisco Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I
leave to my aforecited children all the properties described in the above mentioned
Document of Partition dated November 25, 1949 which correspond to each one of
them and in the profits (fruits) expressed in the same, and in the event that the
properties granted to one or any of my children should exceed in quantity or value
those corresponding to another or others, I hereby declare that it is my will that the
same be divided among my children as their inheritance from the free portion of my
property.

I leave to my spouse Don Jesus Alsua as his legitime and as Ws inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertain to me or would pertain to me, which
have not been disposed of pursuant to the partition, should be divided equally among
my above-mentioned heirs after my death. Ligao, Albay, Philippines, August
14,1956.
t.hqw

(SGD.) FLORENTINA
RALLA DE ALSUA
(joint Record on Appeal pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate
but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on
the same day of August 14, 1956, the spouses Don Jesus and Do;a Tinay both filed their respective
supplemental petitions for the probate of their respective codicils in the probate proceedings earlier
filed. On February 19, 1957, their respective holographic wins and the codicils thereto were duly
admitted to probate.
Upon the death of Do;a Tinay on October 2, 1959, Don Jesus was named executor to serve without
bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been
issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July 1,
1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the
presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of
all his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial
Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting
witnesses on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament (Exh.
A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly
cancelled, revoked and annulled all the provisions of Don Jesus' holographic will of January 5, 1955
and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his
four living children by virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such
properties be taken into account in the partition of his estate among the children; and (c) it instituted
his children as legatees/devisees of certain specific properties, and as to the rest of the properties
and whatever may be subsequently acquired in the future, before his death, were to be given to
Francisca and Pablo, naming Francesca as executrix to serve without a bond.
After all debts, funeral charges and other expenses of the estate of Do;a Tinay had been paid, all
her heirs including Don Jesus, submitted to the probate court for approval a deed of partition
executed on December 19, 1959 (Exh. 7-Q) and which essentially confirmed the provisions of the
partition of 1949, the holographic will and codicil of Do;a Tinay. On July 6, 1960, the court approved
the partition of 1959 and on January 6, 1961 declared the termination of the proceedings on the
estate of Do;a Tinay.

On May 6,1964, Don Jesus Alsua died.

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of
November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the
Court of First Instance of Albay and was docketed as Special Proceedings No. 699. Oppositions
thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on
the following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the
execution of the alleged will; (b) that the will was executed under duress or influence of fear or
threats; or it was procured by undue and improper pressure and influence on the part of the main
beneficiaries and of person or persons in collusion with them, or the signature of the testator was
secured by or thru fraud; (c) that the will was not executed according to the formal requirements of
the law; and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of
1949 agreed upon by him, his deceased spouse, Do;a Tinay, and all his children, Francisco, Pablo,
Amparo and Fernando thru his judicial guardian Clotilde Samson, and also contravened Don Jesus'
own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and
implementing the said partition of 1949 which had already been partially executed by all the
signatories thereto in the partition of the estate of Do;a Tinay in December, 1959.
On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the
Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She
then filed with the Probate Court an inventory of the properties of the estate which, according to the
oppositors therein (the private respondents now) did not include some properties appearing in the
agreement of November 25. 1949 or in the inventory attached thereto as Annex "A" and in the
"Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus.
According to the oppositors, these properties consist of thirty- three (33) premium agricultural lots
with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total
assessed value of P48,410.00 or a probable total market value of P238,000.00 at only P2,000.00
per hectare, and four (4) commercial urban lots Ideally located in the business section of Legazpi
City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an
assessed value of approximately P117,260.00 or a probable market value at the time of
P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua
and Francisco Alsua-Betts, specifically, 3 parcels of the 33 agricultural lands to Pablo and the rest to
Francisco, the oppositors also raised in issue the non-inclusion of said properties in the inventory of
the estate of their late father. In answer, Francisco claimed ownership over the same, alleging that
she bought the properties from their father and presenting the two Deeds of Sale now being
assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural
land to Francisco by their father for the price of P70,000.00 and the other dated November 26, 1962
evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the
oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with
damages, which upon agreement of the parties was then jointly heard and tried with Special
Proceedings No. 699 for probate of the Last Will and Testament of Don Jesus executed on
November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of Albay
promulgated a decision on January 15, 1973, the dispositive portion of which states:
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WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:

1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had
been marked as Exhibit A, consisting of nine (9) pages, and orders that the same be
made the basis for division and distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the
sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are
lawful and valid sales and accordingly conveyed title to the VENDEE thereof. The
Plaintiffs in Civil Case 3068. are ordered jointly and severally to pay to the defendant,
Francisco Alsua Betts Fifty Thousand Pesos (P50,000.00) as damages and Fifty
Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred
Thousand Pesos (P100,000.00) and to pay the costs.
On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision
in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus

t.hqw

IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as
it hereby sets aside the decision appealed from in the following manner: (1) in
Special Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil
Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby
declared null and void, ordering the appellees Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to
render an accounting of properties in their possession and to reimburse the plaintiffs
the net gain, in the proportion that appertains to them in the properties subject of
litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the
complete restoration of the properties pertaining to (plaintiffs) pursuant to Article
2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the
plaintiffs and oppositors the sum of P50,000.00 as attorney's fees, and the costs.
Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit:

t.hqw

I. The respondent Court of Appeals erred in not affirming the findings of the probate
court (Special Proceedings No. 699) that private respondents, oppositors to the
probate of the will, are in estoppel to question the competence of testator Don Jesus
Alsua.
II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus
Alsua cannot revoke his previous will.
III. The respondent court's finding is grounded entirely on speculation, surmises or
conjectures resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling the sales of August 26, 1961
(Exh. U), and of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no
moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his
will cannot be determined by acts of the herein private respondents as oppositors to the will in

formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don
Jesus Alsua, be appointed by the court executor of the will of their mother in Special Proceedings
No. 485, Testate Estate of Do;a Florentina Ralla de Alsua and in subsequently petitioning the court
not to require Don Jesus Alsua to file any accounting as executor in the proceedings, which
petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private
respondents from questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case
of Testate Estate of the Late Procopia Apostol Benedicta Obispo, et al vs. Remedios Obispo, 50
O.G. 614, penned by Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when
he was still in the Court of Appeals, and We quote:
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Finally, probate proceedings involve public interest, and the application therein of the
rile of estoppel, when it win block the ascertainment of the truth as to the
circumstances surrounding the execution of a testament, would seem inimical to
public policy. Over and above the interest of private parties is that of the state to see
that testamentary dispositions be carried out if, and only if, executed conformably to
law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502:

t.hqw

'The primary purpose of the proceeding is not to establish the

existence of the right of any living person, but to determine whether
or not the decedent has performed the acts specified by the pertinent
statutes, which are the essential prerequisites to personal direction of
the mode of devolution of his property on death. There is no legal but
merely a moral duty resting upon a proponent to attempt to validate
the wishes of the departed, and he may and frequently does receive
no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is
the duty of the court to effectuate, in so far as may be compatible with
the public interest, the devolutionary wishes of a deceased person
(Matter of Watson's Wilt 262 N.Y., 284, 294, 186, N.E., 787; Matter of
Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S.,
affirmed 217 app. Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of
Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end,
the court is, in effect, an additional party to every litigation affecting
the disposal of the assets of the deceased. Matter of Van
Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'
The next issue that commands Our attention is whether the respondent court erred in not allowing
the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance
was based on speculations, surmises or conjectures, disregarding the facts as found by the trial
court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed
under Article 839 which provides as follows:
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Art. 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a wilt at the
time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or
threats;
(4) If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud,
(6) If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.
The issue under consideration appears to Us to have been answered by the respondent court itself
when it accepted the findings of the trial court on the due execution of the questioned will and
testament of Don Jesus, declaring:
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... and going back to the previous question, whether the questioned will and
testament of November 14, 1959, Exh. A, was executed in accordance with Arts.
805-809 of the New Civil Code, this Tribunal from the very beginning accepts the
findings of the inferior court concerning the question,
t.hqw

On October 2, 1959, Do;a Florentina died at Ligao, Albay. About 2

weeks after said death of his wife, Don Jesus Alsua decided to make
a new will, thereby revoking and cancelling his previous holographic
will which he made on January 5, 1955 and also its codicil dated
August 14, 1956. In the presence of his bookkeeper and secretary,
Esteban P. Ramirez, he crossed out in ink each and every page of
said page he wrote on each page the word "cancelado", and affixed
his signature thereon (Exh V-5, V-6, consecutively up to and including
Exh. V-14). He then instructed Ramirez to make a list of all s
properties with their corresponding descriptions.
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio
Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge
S, Imperial, who, incidentally, is now a judge of the Court of First
Instance of Naga City, Camarines Sur. Don Jesus informed his
lawyers that he wanted to make a new will, and accordingly gave
more detailed instructions as to how he wanted to divide his
properties among his four children. He handed to them a list and on
the left he indicated the name of the child to whom the listed
properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major
language, as in fact his conversations with Don Gregorio are always
in Spanish. A few days before November 14, 1959, Atty. Jorge S.
Imperial showed to Don Jesus the semi-final draft of the will and after

reading it Don Jesus said that it was as directed by him, and after
making a few minor corrections, he instructed Atty. Jorge S. Imperial
to put the win in final form. He further told Atty, Jorge Imperial that the
signing of the will should be at his home in Ligao, in the morning of
November 14, 1959, and that the witnesses should be Mr. Ramon
Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who
is a friend of the family; and Mr. Jose Gaya who is a sort of employee
of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty.
Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence
of Mr. Ramon Balana, and informed the latter that Don Jesus was
requesting him to be one of the attesting witnesses to his will. Mr.
Balana, having a very high regard for Don Jesus, considered it an
honor to be so asked, and gladly went with the Imperials. They
arrived at the residence of Don Jesus at Ligao; Albay, almost ten
o'clock of that morning, and they were ushered in by Mr. Jose Gaya,
and the latter requested them to be seated at the usual receiving
room on the ground floor while he announced their arrival to Don
Jesus who was on the second floor. Soon Don Jesus came down,
carrying with him the will to be signed placed inside a cartolina folder.
He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and
immediately joined them in conversation. Mr. Gaya called for Mr. Jose
Madarieta, whose residence is just across the road from the house of
Don Jesus. Mr. Madarieta was already informed by Don Jesus
himself about the fact of signing the will that morning, and so, on
being advised by Mr. Gaya that the Imperials had already arrived,
Madarieta proceeded to the residence of Don Jesus, without much
delay. With the coming of Madarieta and the coming back of Gaya,
there were now six people gathered in the living room, namely: Don
Jesus Alsua, Don Gregorio Imperial Atty. Jorge S. Imperial Mr.
Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the
witnesses who testified for the petitioner declared that Don Jesus was
in bright and lively conversation which ran from problems of farming
and the merits of French-made wines. At 1 1:00 o'clock, Don
Gregorio made a remark that it is about time to do what they were
there for, and this was followed by a more or less statement from
Jesus, who said:
t.hqw

'Preisamente es por lo que he Hamado a ustedes que

esten presentes para ser testigos de rni ultimo
voluntad y testamento que ha sido preparado por el
abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documento tengo aqui conmigo y
encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis instrucciones,
Como saben ustedes tengo cuatro (4) hijos todos
egos.' (pp. 43-44, t.s.n., hearing of December 7, 1967,
Sarte.

On request of Don Jesus, all of them moved to the big round table on
another part of the same sala for convenience in signing because
there were chairs all around this table. The will which consisted of
nine pages, with a duplicate, and triplicate was laid on the round table
and the signing began, with Atty. Jorge S. Imperial assisting each
person signing by indicating the proper place where the signature
shall be written. Don Jesus, as testator, signed first. After signing the
original and the two other sets, the three sets were then passed to
Mr. Ramon Balana who signed as attesting witness. After Mr. Balana,
Mr. Jose Madarieta signed next as another attesting witness, and
when Mr. Madarieta finished signing all the three sets, the same were
passed to Mr. Jose Gaya who also signed as the third attesting
witness. On each of the three sets, Don Jesus signed ten times,
one on the margin of each of the nine pages, and at the end of the
instrument proper. Each of the three attesting witnesses (Balana,
Madarieta and Gaya) signed eleven times on each set, one on the
margin of each of the nine pages, one at the end of the instrument
proper and one below the attestation clause. The original will was
marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and
the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya
were Identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge)
imperial. It was also clearly established that when Don Jesus signed
the will Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and
witnessed said signing, and that when each of these three witnesses
was signing, Don Jesus and the two other attesting witnesses were
present and Witnessing said Signing. The signing by the testator and
the attesting witnesses having been completed, Atty. Jorge S.
Imperial as Notary Public with commission for the entire province of
Albay, notarized the wilt and sealed it with his notarial seat which seal
he brought along that morning. After all the three sets were notarized,
they were all given back to Don Jesus who placed them inside the
same folder. At that moment, it was already about 12:30 P.M. and
Don Jesus invited all of them to lunch, which invitation was gladly
accepted by all of then-L (pp. 474-480, Joint Record on Appeal in CAG.R. No. 54492-R)
which findings are supported by the evidence, - it is quite difficult to conclude that the
same had not complied with the requirements of Arts. 804- 806 of the New Civil
Code. ... (CA Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the lower court
declaring the contested will as having been executed with all the formal requirements of a valid will,
are supported by the evidence. This finding is conclusive upon this Tribunal and We cannot alter,
review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the
lower court and the respondent appellate court have declared that these are the facts and such facts
are fully borne and supported by the records. We find no error in the conclusion arrived at that the
contested will was duly executed in accordance with law. We rule that the questioned last will and
testament of Don Jesus Alsua fully complied with the formal requirements of the law.

Respondent court, however, denied probate of the will after ,'noting certain details which were a little
bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the
spouses Don Jesus and Do;a Tinay together with their four children Francisco, Pablo, Amparo and
Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the
conjugal properties of the spouses between the spouses themselves and the children under the
terms and conditions and dispositions herein before stated and to implement its provisions, Don
Jesus and Do;a Tinay subsequently executed separately their respective holographic wigs both
dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as
reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and
upon the death of Do;a Tinay, Don Jesus was appointed executor of the will and in due time the
partition of the properties or estate of Do;a Tinay was approved by the probate court on July 6,
1960.
The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable
contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating
said partition agreement, barring him from revoking his holographic will of January 5, 1955 and his
codicil of August 14, 1956, and further barring him from executing his new will and testament of
November 14, 1959, now the subject of the probate proceedings elevated to this Court.
We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of
November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code
which are applicable hereto. These Articles provide as follows:
t.hqw

Art. 1056. If the testator should make a partition of his property by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of
the forced heirs. ...
Art. 1271. All things, even future ones, which are not excluded from the commerce of
man, may be the subject-matter of contracts.
Nevertheless, no contract may be entered into with respect to future inheritances,
except those the object of which is to make a division inter vivos of an estate, in
accordance with Article 1056.
All services not contrary to law or to good morals may also be the subject- matter of
contract.
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be
deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who
has made a prior will or testament. In other words, Article 1056 being an exception cannot be given a
wider scope as to include in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and new Civil Code, a
person who executes a will is permitted at the same time or a little thereafter or even before as long
as he mentions this fact in the will, to partition his properties pursuant to the provisions of Article
1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the
partition presupposes the execution of the will that it ratifies or effectuates, citing the case of Legasto
vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of

November 14, 1949 was ratified in the holographic will executed by Don Jesus on Jan. 5, 1955 and
in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the
Supreme Court categorically declared the necessity of a prior will before the testator can partition his
properties among his heirs, and We quote the pertinent portions of the decision:
t.hqw

The first question to decide in the instant appeal is whether the partition made by
Sabina Almadin of her property among her nieces, the defendants and appellants
herein, was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of
the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a
person may, by acts inter vivos, partition his property referred to in the section
wherein said article is found, without the authority of a testament containing an
expression of his last will, or the authority of law, for, otherwise, a partition thus made
would be tantamount to making a will in a manner not provided for, authorized, nor
included in the chapter referring to testaments, and especially, to the forms thereof,
which is entirely different from the legal consequences of a free disposition made by
parents during their lifetime, whereby they give to their children the whole or a part of
their property;
Considering that, inasmuch as the second paragraph of article 1271 makes
reference to the aforesaid article, in providing that no contracts may be entered into
with respect to future inheritances except those the object of which is to make a
division inter vivos of the estate in accordance with article 1056, it is evident that said
difference likewise leads to the conclusion that a partition thus made should be on
the basis of a testamentary or legal succession and should be made in conformity
with the fundamental rules thereof and the order of the heirs entitled to the estate,
because neither of the two provisions could be given a wider meaning or scope than
that they simply provide for the division of the estate during the lifetime of the owner,
which, otherwise, would have to be done upon the death of the testator in order to
carry into effect the partition of the estate among the persons interested.
Manresa comments on the same article as follows:
A distinction must be made between the disposition of property and its division; and
the provision of article 1056 authorizing the testator to dispose of his property by acts
inter vivos or by last will, must be understood in accordance with this distinction. The
Idea is to divide the estate among the heirs designated by the testator. This
designation constitutes the disposition of the properties to take effect after his death,

and said act must necessarily appear in the testament because it is the expression of
the testator's last will and must be surrounded by appropriate formalities. Then
comes the second part, to wit, the division in conformity with that disposition, and the
testator may make this division in the same will or in another will, or by an act inter
vivos. With these words, the law, in article 1056 as well as in article 1057, which we
shall hereafter examine, makes allusion to the forms or manner of making the
partition and not to the effects thereof, which means that, for purposes of partition the
formal solemnities which must accompany every testament or last will are not
necessary. Neither is it necessary to observe the special for. realities required in case
of donations, because it is not a matter of disposing gratuitously of properties, but of
dividing those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and
authoritative commentator, Manresa, are of opinion that a testator may, by an act
inter vivos, partition his property, but he must first make a will with all the formalities
provided for by law. And it could not be otherwise, for without a will there can be no
testator; when the law, therefore, speaks of the partition inter vivos made by a
testator of his property, it necessarily refers to that property which he has devised to
his heirs. A person who disposes of his property gratis inter vivos is not called a
testator, but a donor. In employing the word "testator," the law evidently desired to
distinguish between one who freely donates his property in life and one who
disposes of it by will to take effect after his death.
We are not in conformity with the holding of the respondent court that the extrajudicial partition of
November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy
had been validly ratified by the holographic will of Don Jesus executed on January 5, 1955 and his
codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is
permitted to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code
even before executing his will as long as he mentions this fact in the will, is not warranted under the
ruling of Legasto vs. Verzosa, supra and the commentary of Manresa as quoted above. We rule,
therefore, that the respondent court erred in denying probate to the will of Don Jesus dated
November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of
1949 was contractually bound by the provisions thereof and hence could not revoke his participation
therein by the simple expedience of making a new will with contrary provisions or dispositions. It is
an error because the so-called extrajudicial partition of 1949 is void and inoperative as a partition;
neither is it a valid or enforceable contract because it involved future inheritance; it may only be
given effect as a donation inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial compliance with
the rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there
could have been no valid donation to the children of the other half reserved as the free portion of
Don Jesus and Do;a Tinay which, as stated in the deed, was to be divided equally among the
children for the simple reason that the property or properties were not specifically described in the
public instrument, an essential requirement under Article 633 which provides as follows:
t.hqw

Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the
amount of the encumbrances to be assumed by the donee expressed.

The acceptance must be made in the deed of gift or in a separate public writing; but it
shall produce no effect if not made during the lifetime of the donor.
If the acceptance is made by separate public instrument, authentic notice thereof
shall be given the donor, and this proceeding shall be noted in both instruments.
This other half, therefore, remained as the disposable free portion of the spouses which may be
disposed of in such manner that either of the spouses would like in regards to his or her share in
such portion, unencumbered by the provision enjoining the last surviving spouse to give equally to
the children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus
and Do;a Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their
combined properties which must be charged against their legitime and cannot anymore be revoked
unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to
their respective shares.
Upon the death of Do;a Tinay on October 2, 1959, her share in the free portion was distributed in
accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956.
It must be stressed here that the distribution of her properties was subject to her holographic win and
codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same
date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to
circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the
death of Do;a Tinay, only her estate was being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of Do;a Tinay and We
find no indication whatsoever that Do;a Tinay expressly or impliedly instituted both the husband and
her children as heirs to her free portion of her share in the conjugal assets. In her holographic will,
mention of her children as heirs was made in the fourth clause but it only provided that, to wit:
t.hqw

Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi

testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada
en el parrafo tercero su la misma proporcion o sea: la mitad (1/2) para is esposa; y la
otra mitad (1/2) para mis hijos en partes iguales.
For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new
properties after the execution of this testament, the same shall be partitioned among my spouse and
above named children or the children mentioned in above par. 3 in the same proportion, that is, onehalf (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted
provision, the children would only inherit together with Don Jesus whatever new properties Do;a
Tinay would acquire after the execution of her will.
Likewise, the codicil of Do;a Tinay instituted her husband as sole heir to her share in the free
portion of the conjugal assets, and We quote that part of the codicil:
t.hqw

Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de
ni cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun
en favor de mis hijos en la escritura de reparticion precitada y que excedieran de la
mitad de gananciales que le corresponds tal como arriba declare, incluyendo todos
aquenos bienes que se adquiriesen por nosotros despues de otorgado por mi este
testamento.

Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es
mi voluntad que todas las propiedades de todo genero que me pertenecen y me
pudieran pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre
mis herederos mencionados despues de mi muerte.
Again for purposes of clarity and convenience, the above portion states:

t.hqw

I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part
of the free portion of my property which have not been allocated in favor of my
children in the Document of Partition aforecited and that which should exceed 1/2 of
the conjugal property of gains that pertains to him as above stated, including all
those properties which we shall acquire after the execution of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertains to me or would pertain to me,
which have not been disposed of pursuant to the partition, should be divided equally
among my above-mentioned heirs after my death.
The children, therefore, would only receive equal shares in the remaining estate of Do;a Tinay in
the event that she should be the surviving spouse. To stress the point, Do;a Tinay did not oblige her
husband to give equally to the children, upon his death, all such properties she was bequeathing
him.
Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959
in view of Our holding that Do;a Tinay's wig and codicil did not stipulate that Don Jesus will bestow
the properties equally to the children, it follows that all the properties of Do;a Tinay bequeathed to
Don Jesus under her holographic win and codicil became part of Don Jesus' estate unburdened by
any condition obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949
and had in fact conformed to said Partition by making a holographic will and codicil with exactly the
same provisions as those of Do;a Tinay, which respondent court sustained. We rule, however, that
Don Jesus was not forever bound thereby for his previous holographic will and codicil as such,
would remain revokable at his discretion. Art. 828 of the new Civil Code is clear: "A win may be
revoked by the testator at any time before his death. Any waiver or restriction of this right is void."
There can be no restriction that may be made on his absolute freedom to revoke his holographic will
and codicil previously made. This would still hold true even if such previous will had as in the case at
bar already been probated (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only
authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly,
the rights to the succession are transmitted only from the moment of the death of the decedent
(Article 777, New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property
before his death to whomsoever he chose, provided the legitime of the forced heirs are not
prejudiced, which is not herein claimed for it is undisputed that only the free portion of the whole
Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining
estate of Do;a Tinay in her holographic will and codicil resulting in all such properties becoming the
properties of Don Jesus alone, and after clearly pointing out that Don Jesus can, in law, revoke his
previous holographic will and codicil, by making another win expressly cancelling and revoking the

former, the next issue for the Court's resolution is the validity of the provisions of the contested will.
Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will
may be entertained by the probate court, the Court had, on more than one occasion, passed upon
the intrinsic validity of a will even before it had been authenticated. Thus We declared inNuguid v.
Nuguid, 17 SCRA 499:
t.hqw

The parties shunted aside the question of whether or not the will should be allowed
to probate. For them, the meat of the case is the intrinsic validity of the wilt Normally
this comes only after the court has declared that the will has been duly authenticated.
...
... If the case were to be remanded for probate of the wilt nothing will be gained. On
the contrary, this litigation win be protracted and for ought that appears in the record,
in the event of probate or if the court rejects the will probability exists that the case
win come up once again before us on the issue of the intrinsic validity or nullity of the
wilt Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a behalf that we might as well meet head-on the
time of the validity of the provisions of the will in question. ...
The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express
revocation of his holographic wig of January 5, 1955 and the codicil of August 14, 1956; a statement
requiring that all of his properties donated to his children in the Deed of 1949 be collated and taken
into account in the partition of his estate; the institution of all his children as devisees and legatees to
certain specific properties; a statement bequeathing the rest of his properties and all that may be
acquired in the future, before his death, to Pablo and Francesca; and a statement naming Francesca
as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties distributed to the
children under the Deed of 1949 and those distributed under the contested will of Don Jesus does
not show that the former had in fact been included in the latter. This being so, it must be presumed
that the intention of Don Jesus in his last win was not to revoke the donations already made in the
Deed of 1949 but only to redistribute his remaining estate, or that portion of the conjugal assets
totally left to his free disposal and that which he received as his inheritance from Do;a Tinay. The
legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs claimed or
intimated otherwise. The properties that were disposed of in the contested will belonged wholly to
Don Jesus Alsua's free portion and may be diamond of by him to whomsoever he may choose.
If he now favored Francesca more, as claimed by private respondents, or Pablo as in fact he was,
We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so.
We have clearly laid down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit:
t.hqw

... nevertheless it would be venturesome for the court to advance its own Idea of a
just distribution of the property in the face of a different mode of disposition so clearly
expressed by the testatrix in the latter will. ...
It would be a dangerous precedent to strain the interpretation of a will in order to
effect what the court believes to be an equitable division of the estate of a deceased
person. The only functions of the courts in these cases is to carry out the intention of
the deceased as manifested in the wig. Once that intention has been determined

through a careful reading of the will or wills, and provided the law on legitimes has
not been violated, it is beyond the place of judicial cognizance to inquire into the
fairness or unfairness of any devise or bequeast. The court should not sit in judgment
upon the motives and sentiments of the testatrix, first, because as already stated,
nothing in the law restrained her from disposing of her property in any manner she
desired, and secondly, because there are no adequate means of ascertaining the
inward process of her conscience. She was the sole judge of her own attitude toward
those who expected her bounty. ...
Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored
the petitioner to the prejudice of the other heirs who would have been entitled to an equal share
under the extrajudicial partition of 1949, faced two alternatives-one, to consider Don Jesus as a man
of culture and honor and would not snow himself to violate the previous agreement, and the other as
one whose mental faculties or his possession of the same had been diminished considering that
when the will was executed, he was already 84 years of age and in view of his weakness and
advanced age, the actual administration of his properties had been left to his assistant Madarieta
who, for his part received instructions from Francisco and her husband, Joseph Betts. According to
the court, the better explanation is the latter, which is not legally tenable. Under Article 799 of the
New Civil Code which provides as follows:
t.hqw

Art. 799. To be of sound mind, it is not necessary that the testator be in full
possession of all his reasoning faculties, or that his mind be wholly unbroken,
unimpaired, or unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the
character of the testamentary act,
The test of testamentary capacity is at the time of the making of the win. Mere weakness of mind or
partial imbecility from disease of body or from age-does not render a person incapable of making a
will.
t.hqw

Between the highest degree of soundness of mind and memory which

unquestionably carries with it full testamentary capacity, and that degrees of mental
aberration generally known as insanity or Idiocy, there are numberless degrees of
mental capacity or incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or from age, will not
render a person incapable of making a will; a weak or feebleminded person may
make a valid will, provided he has understanding and memory sufficient to enable
him to know what he is about to do and how or to whom he is disposing of his
property. To constitute a sound and disposing mind, it is not necessary that the mind
be unbroken or unimpaired or unshattered by disease or otherwise. It has been held
that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the
testator be of sound mind at the time of its execution, and under Article 800, the law presumes that
every person is of sound mind in the absence of proof to the contrary. In the case at bar, the
acceptance by the respondent court of the findings of fact of the trial court on the due execution of

the last win and testament of Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law. But more than that, gleaned from
the quoted portions of the appealed decision, the described behavior of Don Jesus is not that of a
mentally incapacitated person nor one suffering from "senile dementia" as claimed by private
respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave
detailed instructions to his lawyer as to how he wanted to divide his properties among his children by
means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared
by his lawyer w-as even corrected by Don Jesus; (c) on the day of the signing of the will at his house
in Ligao, "Don Jesus was in bright and lively spirits ..., leading in the conversation which ran from
problems of farming and the merits of French-made wines"; (d) the signing of the will by Don Jesus
and his attesting witnesses was made after a statement from Don Jesus of the purpose of their
meeting or gathering, to wit:
t.hqw

Precisamente es por lo que he Ilamado a ustedes que eaten presentes para ser
testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado
Sr. Gregorio Imperial segun mis instrucciones cuyo documents tengo aqui con migo
y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis
ingtrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.
Clearly then, Don Jesus knew exactly what his actions were and the fun implications thereof.
In rejecting probate of the wilt respondent court further pointed out other details which, in the words
of the decision "are a little bit difficult to reconcile with the ordinary course of things and of fife" such
as the fact that Don Jesus had sought the probate of his will of January 5, 1955 and his codicil of
August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he
had no intention of seeking the probate thereof during his lifetime, the alleged redundant and
unnecessary proceedings undertaken by Don Jesus in the properties under question to petitioner
Franciso Alsua-Betts when the same properties had already been bequeathed to her in the will of
November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that
Don Jesus Alsua had regarded his other children with less favor, and that he was more sympathetic
to Francisca so as to or forget the former depriving them of benefits already given to them and
rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate
his previous disposition consecrated in the previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent court found difficult to reconcile with
the ordinary course of things and of life are mere conjectures, surmises or speculations which,
however, do not warrant or justify disallowance of the probate of the win of Don Jesus. The fact that
Don Jesus did not cause his will to be probated during his lifetime while his previous holographic win
and codicil were duly probated when he was still alive is a mere speculation which depends entirely
on the discretion of Don Jesus as the testator. The law does not require that a will be probated
during the lifetime of the testator and for not doing so there cannot arise any favorable or
unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of
the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal
ground to reject allowance or disallowance of the wig. The same thing can be said as to whatever
reason Don Jesus had for selling the properties to his daughter Francisca when he had already
assigned the same properties to her in his will. While We can speculate that Don Jesus desired to
have possession of the properties transferred to Francisca after the sale instead of waiting for his
death may be a reasonable explanation or speculation for the act of the testator and yet there is no
certainty that such was actually the reason. This is as good a conjecture as the respondents may

offer or as difficult to accept which respondent court believes. A conjecture is always a conjecture; it
can never be admitted as evidence.
Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds
of Sale executed by and between Don Jesus and petitioner Francisco is their validity or nullity.
Private respondents mainly contend that the sales were fictitious or simulated, there having been no
actual consideration paid. They further insist that the issue raised is a question of fact and, therefore,
not reviewable in a certiorari proceeding before the Supreme Court. On the other hand, petitioners
herein maintain that it was error for the respondent court to set aside on appeal the factual findings
of the trial court that the two sales were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is
limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive;
and this same principle applies even if the Court of Appeals was in disagreement with the lower
court as to the weight of evidence with a consequent reversal of its findings of fact. But what should
not be ignored by lawyers and litigants alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the record or those which are based upon
substantial evidence. The general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions
to the general rule, where We have reviewed and revised the findings of fact of the Court of Appeals.
Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on
appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures
(Joaquin vs. Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil.
15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51 O.G. 2927);
4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27,
1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant and appellee (Evangelists vs. Alto Surety & Ins.
Co., L-11139, April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of
the contested sales was not supported by the evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over
agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the
consideration of Seventy Thousand Pesos (P70,000.00), which document bears the signature of
Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness,
again not assailed as a forgery nor alleged as done thru fraud, force or threat. (2) Exhibit "W", a
deed of sale over urban lots executed on November 16, 1962 for the consideration of Eighty

Thousand Pesos (P80,000.00), which document also bears the signature of Don Jesus, also
admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don
Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No.
0252 in the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of
agricultural land to Francisco under the same date; again, Pablo did not deny the genuineness of his
signature. (4) Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 dated November 26,
1962, in the amount of P32,644.71, drawn and signed by Francesca, payable to Don Jesus. (5)
Exhibit "X-1", a second Bank of Philippine Islands Check (No. D-6980) also dated November 26,
1962 in the amount of ?47,355.29, drawn by Francisco and payable to Don Jesus. (6) Exhibit "X-3 "
and "X-5 ", endorsements on the back of the last two checks by Don Jesus, again, his signatures
thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue
Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI
Check No. D-6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of
Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array
of documentary evidence that in fact, Don Jesus sold the subject properties to his daughter,
Francisca for the total consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for being without cause or
consideration is as weak and flimsy as the ground upon which the respondent court upheld said
claim on the basis that there was no need for funds in Don Jesus' old age aside from the speculation
that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as
to favor Francesca and discriminate against the other children. The two contracts of same executed
by Don Jesus in favor of Francesca are evidenced by Exhibits "U" and "W", the genuineness of
which were not at all assailed at any time during this long drawn-out litigation of 15 years standing.
That the consideration stated in the contracts were paid is also sufficiently proved as the receipts
thereof by Don Jesus were even signed by one of the private respondents, Pablo Alsua, as a
witness. The latter cannot now deny the payment of the consideration And even of he now allege
that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3 " and
"X-5 ", which show that the checks of Francisco made payable to Don Jesus. were in fact given to
Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the
annulment case, which proved that Don Jesus actually used Exhibit "XI " to complete payment on
the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the inadequacy of the
given price. Inadequacy of consideration does not vitiate a contract unless it is proven which in the
case at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to shock the court's conscience,
considering that the price paid was much higher than the assessed value of the subject properties
and considering that the sales were effected by a father to her daughter in which case filial love must
be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside.
The decision of the Court of First Instance Of Albay in Special Proceedings No. 699 and Civil Case
No. 3068 is hereby reinstated, with costs against respondents.
SO ORDERED.
FIRST DIVISION

[G.R. No. 6322. February 21, 1912. ]

DOLORES AVELINO, as administratrix of the estate of Pascual de la Cruz, Plaintiff-Appellee, v.
VICTORIANA DE LA CRUZ, Defendant-Appellant.
Buencamino, Diokno, Mapa, Buencamino, Jr., Platon & Lontoc, for Appellant.
Alfonso Mendoza, for Appellee.
SYLLABUS
1. WILLS; A BLIND MAN MAY MAKE A WILL, IF OTHERWISE COMPETENT; BLIND WITNESSES PROHIBITED.
The mere fact that a testator is blind does not render him incompetent to make a will. While section 620
of the Code of Civil Procedure prohibits blind persons from acting as witnesses to the execution of a will, no
limitation is placed upon testamentary capacity except that of age and soundness of mind; no presumption
of incapacity arises from blindness alone.

DECISION

JOHNSON, J. :

The present is an appeal from an order of the Honorable George N. Hurd, judge of the Court of First
Instance of the city of Manila, in which he had legalized the will of the said Pascual de la Cruz, deceased.
The contention of the opponent is that at the time of the making of the will the said Pascual de la Cruz was
blind and had been for a number of years, and was incompetent to make the will in question.
Against this contention of the opponent, all of the witnesses who signed the will were called as witnesses,
and each declared that the deceased was of sound mind at the time said will was made and fully understood
its contents, and signed the same in their presence and that they each signed the will in the presence of
each other, as well as in the presence of the deceased.
The appellant attempted to show that the deceased was incompetent to make his will because he was blind
at the time the same was executed and had been for several years theretofore. There is absolutely no proof
to show that the deceased was incapacitated at the time he executed his will. No presumption of incapacity
can arise from the mere fact that he was blind. The only requirement of the law as to the capacity to make a
will is that the person shall be of age and of sound mind and memory. (Sec. 614, Code of Procedure in Civil
Actions.) Section 620 of the same code prohibits blind persons from acting as witnesses in the execution of
wills, but no limitation is placed upon testamentary capacity, except age and soundness of mind.
In our opinion the record contains nothing which justifies the modification of the order made legalizing the
will in the present case. The order of the lower court admitting to probate and legalizing the will in question
is, therefore hereby affirmed with costs.

FIRST DIVISION
[G.R. No. L-17627. June 8, 1922. ]
In re will of Marcelo Jocson, deceased. RAFAEL JOCSON ET AL., Petitioners-Appellees, v.
ROSAURO JOCSON ET AL., opponents-appellants.
Araneta & Zaragoza for Appellants.
M. Fernandez Yanson, Pio Sian Melliza and Montinola Montinola & Hontiveros for Appellees.
SYLLABUS

1. EVIDENCE; ATTESTING WITNESSES; UNIMPORTANT CONTRADICTIONS. The contradictions of the

witnesses to a will in their testimony as to certain details of an unimportant incident are not sufficient to
raise any doubt as to the truth and veracity of their testimony.
2. WILLS; MENTAL CAPACITY TO MAKE A WILL. To constitute a sound mind and disposing memory, it is
not necessary that the mind shall be wholly unbroken and unimpaired by disease or otherwise, or that the
testator be in full possession of all his reasoning faculties. Failure of memory is not sufficient unless it be
total or extends to his immediate family or property.

DECISION

VILLAMOR, J. :

On June 10, 1920, Rafael Jocson, Cirilo Manlaque, and Filomena Goza presented a petition in the court
below for the probate of the document
Exhibit A, as the last will and testament of the deceased Marcelo Jocson. This petition was opposed by
Rosauro, Asuncion, and Dominga Jocson, alleging that : (a) The supposed will was not the last will of the
deceased, and the signatures appearing thereon, and which are said to be of the testator, are not authentic;
(b) the testator, that is, the deceased, was not of sound mind and was seriously ill at the time of its
execution; and (c) the supposed will was not executed in accordance with the law.
After trial the lower court rendered decision finding, among other things, as follows:

jgc:chanroble s.com.ph

"For all of the foregoing reasons the court finds that some hours before, during and one hour after, the
execution of his will, Marcelo Jocson was of sound mind; that he dictated his will in Visaya, his own dialect;
that he signed his will in the presence of three witnesses at the bottom, and on each of the left margins of
the three sheets in which it was written; that said three witnesses signed the will in the presence of the
testator and of each other, all of which requirements make the document Exhibit A a valid will, in accordance
with the provision of section 618 of the Code of Civil Procedure, as amended by Act No. 2645.
"By virtue thereof, it is adjudged and decreed that the document Exhibit A is the last will and testament of
the deceased Marcelo Jocson, and it is ordered that the same be admitted to probate, and Rafael Jocson is
hereby appointed administrator of the estate left by said deceased, upon the filing of a bond in the sum of
fifteen thousand pesos (P15,000)."
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The appellants allege that the trial court erred in holding that Exhibit A is the last will and testament of the
deceased Marcelo Jocson, and in ordering and decreeing the probate thereof as his last will.
All the arguments advanced by the appellants tend to show that the testator Marcelo Jocson, at the time of
executing the will, did not have the mental capacity necessary therefor; that said will was not signed by the
witnesses in the presence of the testator; that the witnesses did not sign the will in the presence of each
other, and that the attestation of the supposed will does not state that the witnesses signed in the presence
of the testator.
All of these points raised by the appellants were discussed at length by the trial court upon the evidence
introduced by the parties. After an examination of said evidence, we are of the opinion, and so hold, that the
findings made by the trial court upon the aforesaid points are supported by the preponderance of evidence.
We have noticed certain conflicts between the declaration of the witnesses on some details prior to, and
simultaneous with, the execution of the will, but to our mind such discrepancies are not sufficient to raise
any doubt as to the veracity of their testimony. In the case of Bugnao v. Ubag (14 Phil., 163), it was held:

jgc:chanroble s.com.ph

"While a number of contradictions in the testimony of alleged subscribing witnesses to a will as to the
circumstances under which it was executed, or a single contradiction as to a particular incident to which the
attention of such witnesses must have been directed, may in certain cases justify the conclusion that the
alleged witnesses were not present, together, at the time when the alleged will was executed, a mere lapse
of memory on the part of one of these witnesses as to the precise details of an unimportant incident, to

which his attention was not directed, does not necessarily put in doubt the truth and veracity of the
testimony in support of the execution of the will."
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As to the mental capacity of the testator at the time of executing his will, the finding of the trial court that
the testator was of sound mind at the time of dictating and signing his will is supported by the evidence.
This court, in the case of Bagtas v. Paguio (22 Phil., 227), held:
jgc:chanroble s.com.ph

"To constitute a sound mind and disposing memory it is not necessary that the mind shall be wholly
unbroken, unimpaired, and unshattered by disease or otherwise, or that the testator be in full possession of
all his reasoning faculties. Failure of memory is not sufficient unless it be total or extends to his immediate
family or property."
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And in Bugnao v. Ubag, supra, it was declared:

jgc:chanrobles.com .ph

"Proof of the existence of all the elements in the following definition of testamentary capacity, which has
frequently been adopted in the United States, held sufficient to establish the existence of such capacity in
the absence of proof of very exceptional circumstances: Testamentary capacity is the capacity to
comprehend the nature of the transaction in which the testator is engaged at the time, to recollect the
property to be disposed of and the persons who would naturally be supposed to have claims upon the
testator, and to comprehend the manner in which the instrument will distribute his property among the
objects of his bounty."
Whether or not the witnesses signed the will in the presence of the testator and whether or not they signed
in the presence of each other, are questions of fact that must be decided in accordance with the evidence.
The trial judge, who tried this case and saw and heard the witnesses while testifying, held that these
solemnities were complied with at the execution of the will in question and we find no reason for altering his
conclusions.
The objection to the attestation of Exhibit A is groundless if the terms thereof are considered, which,
translated from the Visayan dialect, in which the will was written, into English, says:
jgc:chanrobles.com .ph

"We witnesses, do hereby state that the document write on each side of the three sheets of paper was
executed, acknowledged, signed, and published by the testator abovenamed, Marcelo Jocson, who declared
that it was his last will and testament in our presence and, at his request and all of us being present, we
signed our names on the three sheets of paper as witnesses to this will in the presence of each other."
(Translation of Exhibit A, page 18, documentary evidence.)
The judgment appealed from is affirmed with the costs against the appellants. So ordered.

EN BANC
G.R. No. L-41947

January 16, 1936

In re Will of the deceased Silvestra Baron.

VIVENCIO CUYUGAN, petitioner-appellant,
vs.
FAUSTINA BARON and GUILLERMO BARON, oppositors-appellees.
Pedro Abad Santos, Quirino Abad Santos, Francisco M. Ramos, and Aurelio Pineda for appellant.
Arturo Joven for appellee Guillermo Baron.
Vicente J. Francisco and Jesus E. Blanco for appellee Faustina Baron.
BUTTE, J.:
This is an appeal from a judgment of the Court of First Instance of Pampanga denying all the petition
of Vivencio Cuyugan for the probate of the will of Silvestra Baron.

The petition which was filed on February 1, 1933, recites among other things that Silvestra Baron
died on January 30, 1933. The death certificate recites that she was eighty-six years of age and died
of heart failure. The petition further recites that she left an estate exceeding in value the sum of
P80,000 which she disposed of by will dated December 17, 1932, that she died single without forced
heirs.
The will appointed Vivencio Cuyugan, her nephew, as executor and contains the following
paragraphs which dispose of her estate:
Que despues de pagados todos los gastos quese han de ocasioner desde que me caiga
enferma hasta el entiero de mi cadaver, los bienes y propiedades que he de dejar se
repartiran buenamente y en partes iguales mis hermanos Ilamados Guillermo Baron, con
exception de todo el dinero en metalico y mi casa de materiales fuertes construida en el
barrio del Pilar, San Fernando, Pampanga que actualmente habita mi hermano Guillermo
Baron, porque estos los doy de una manera absoluta como herencia de mi sobrino Vivencio
Cuyugan.
Que a la muerte de mis hermanos Guillermo y Faustina Baron, todos los terrenos que en
virtud de este test tamento les dejo en herencia, los doy herencia a mi so brino VIVENCIO
CUYUGAN, por lo que, encargo y prohibo a mis citados hermanos Guillermo y Faustina
Baron, que graven o pongan cualquiera clase de obligacion sobre los bienes que les dejo en
herencia.
The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron" (t.s.n. pp. 170,
171). Both copies are written in the Pampanga dialect and consist of one sheet and are witnessed in
due form by Vicente David, Valeriano Silva and Zacarias Nuguid (known to the testator).
The petition for probate recites:
9. That on the date of the execution of said will, that is to say, on December 17, 1932, the
said testatrix was about 80 years old, more or less, and was found and disposing mind, and
not acting under duress, menace, fraud, or undue influence, and was in every respect
competent to dispose of her estate by will.
The amended oppositions of Guillermo Baron, brother of the deceased, and Faustina Baron, sister
of the deceased, allege in substance first, that at the time of the execution of the alleged will,
Silvestra Baron was mentally and physically incapacitated for the execution of a will; and, second,
that her signature and alleged consent to the said will was obtained and the attorney who prepared
the document and the witnesses who affixed their signatures thereto.
Upon the issues thus drawn by the pleadings of the judge of the Court of First Instance, after and
extended trial and a full consideration of the evidence, came to the following conclusion:
Opinamos que influyeron indebidamente e impropia mente en la voluntad ya debilitada de
doa Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan
y Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron
impedida de presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia
Municipal, Zacarias Nuguid; la oposicion de Regino Cuyugan a que ella firmase el
documento preparado por el abogado Narciso declarando que no habia otorgado
testamento el dia anterior a su translado forzoso a San Fernando para que no se hisciese
firmar documento analogo y la presencia del cabo Morales y del algunos otros soldados, no
solamente cuando se otorgo el testamento, sino cuando ella fue transladada de casa contra

su voluntad y cuando se le hizo firmar el Exhibit 10, y por lo tanto, que ella no gozo de una
completa libertad para disponer de sus bienes en testamento, o con pleno conocimiento del
alcance de su contendido. Solo asi se explica el que ella haya dejado toda la propiedad de
sus bienes a sus sobrinos, con quienes habia estado en pleito, con pretericion de sus
hermanos, especialmente de la opositora Faustina Baron, con quien habia conviviendo
durante 40 aos . . . .
Sentadas las premisas de hecho y de derecho que an teceden, el Juzgado no puede menos
de llegar a la con ser legalizado como el testamento y ultima voluntad de la finada Silvestra
Baron. Cuando existen pruebas suficien tes para concencer al Juzgado de que se ha
ejercido in fluencia indebida en el animo de la testadora y que como resultado de dicha
influencia indebida esta ha otorgado el testamento de la voluntad de la supuesta testadora
sino de los que sobre ella ejercieron la influencia indebida.
An instrument purporting to be a will executed and witnessed in accordance with the formalities
required by the statute is entitled to the presumption of regularity. But the burden of the evidence
passed to the proponent when the oppositors submit credible evidence tending to show that the
supposed testator did not possess testamentary capacity at the time or that the document was not
the free and voluntary expression of the alleged testator or that the will, for any other reason, is void
in law. The finding that the will was executed under due influence or by the fraud of another
presupposes testamentary capacity. In the present case the learned trial judge refused the probate
of the alleged will on the ground that it was executed under the due influence of other persons and
we think the record warrants his findings in this respect. The trial court also made findings of fact
tending to show actual lack of testamentary capacity of Silvestra Baron and we have preferred to
base our conclusion on that finding. The testamentary capacity of Silvestra Baron at the time she
executed the said purported will.
The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were immediately
called in. By reason of her advanced age and the gravity of her illness, she was unable to do
anything for herself. Her grandniece, Epifania Sampang, who reached the house about one hour or
so after the old lady's collapse, telephoned a message to Vivencio Cuyugan at San Fernando, some
fourteen kilometers distant, that Silvestra had an attack and was in a serious condition and
requested that a doctor be sent immediately, Doctor Teopaco and a nurse arrived at about ten
o'clock and treated the patient with a plaster on her back and ice packs over her heart and the doctor
gave her a hypodermic injection in the arm. As the doctor and the nurse were leaving, Vivencio
Cuyugan, with an attorney and three witnesses, entered the house prepared to obtain the will of
Silvestra Baron. Neither the doctor nor the nurse were presented as witnesses by the proponent.
Epifania Sampang, admittedly an intelligent young woman, who was the first to reach Silvestra
Baron and remained throughout the morning attended to her, testified that when she reached the
house she found her grandaunt lying in bed, very pale and unconscious; that she called to her but
she did not answer and only groaned; that her mouth was twisted and her lower lip swollen. She
went out to call a doctor but all the doctors in Magalang were out whereupon she telephoned as
stated to San Fernando for a doctor.
The subscribing witnesses stated that it was their belief that Silvestra understood the alleged will
which she signed, but all of them admitted that although they were in her house about two hours not
one of them exchanged a single word of conversation with Silvestra. The subscribing witness
Zacarias Nuguid testified in part as follows:

P. Desde que los tres abogados Abad Santos, Silva y David y usted y Vivencio Cuyugan se
acercaron a la cama de la finada, hasta que tanto ella como usteded firmaron el testamento,
ha pronunciado ella alguna palabra? ha dicho ella algo o no? R. No recuerdo.
P. Pero, por lo que usted recuerda, ha dicho ella algo o no ha dicho nada? R. No
recuerdo.
P. Usted ha dicho algo a ella? R. Nada.
P. El seor Quirino Abad Santos le ha dicho algo a ella? R. Nada. No he oido.
P. Los otros abogados Silva y David le han dicho algo ? R. No he oido.
P. Ella ha dicho algo a cualquiera de osos tres o a los abogados? R. No he oido que
dijera algo.
P. Si ella hubiese dicho algo a los abogados, asi como los abogados hubieran hablado a
ella, usted hubiera oido porque usted estaba cerca, no es verdad? R. Si seor, hubiera
podido oir.
P. Cuando el senor Silva termino de leer el testamento, dijo algo la vieja? R. No he oido
que dijera algo.
There is no evidence that Silvestra Baron took any active part in the preparation of the alleged will
except that when she was asked if she wished to include her sister Faustina in the will she said
"Yes" in Pampanga. There is no affirmative evidence that she understood the document when it was
read to her. The person who read the will to her testified as follows:
R. Despues de leido el testamento, tuve que entregarlo a doa Silvestra, y lo miro algun
rato.
P. Y ella, efectivamente, cogio el testamento de manos de usted? R. Lo entregue a sus
manos.
P. Y ella lo cogio con sus manos? R. Si seor.
P. Y lo tuvo en sus manos leyendo, mirando? R. Mirandolo asi.
P. Pero, no lo leia? R. Lo estuvo mirando por mucho tiempo asi.
Standing at her bedside was the attorney with three witnesses and the chief beneficiary, Vivencio
Cuyugan, and yet so far as this record shows, not a word was exchanged between any of them and
the suffering old woman. We don't know what drug the doctor administered but it is clear to us from
the evidence that in her dazed physical and mental condition she had no adequate understanding of
what she was doing at that time. She could not even sign her name to the original will properly or
correctly, and when this defect was noted by one of the astute subscribing witnesses, he suggested
that they have her sign another copy (t.s.n. page 109) which was done.
She never saw the alleged will at any time again prior to her death which occurred forty-four days
later. It was immediately taken away by an attorney who kept it in his possession alleging that she

had instructed him to keep it secret. There is, however, credible evidence in the record that before
her death she had denied to several persons that she made any will.
This belief on her part that she had not made any will explains her failure to do any act of revocation
in the forty-four days during which she lingered in this life. The doctrine that where the testator has
had an opportunity to revoke his will subsequent to the operation of an alleged undue influence upon
him but makes no change in it, the courts will consider this fact as weighing heavily against the
testimony of undue influence, has no application to cases in which there has been an initial lack of
testamentary capacity. It has no application, moreover, where from the day of execution until the
death of the testator his mental condition is such that he cannot judge the propriety of revoking the
will. Nor obviously does it apply to a case where the alleged testator harbors the belief that he had
not executed the will in question.
In view of the premises, the judgment appealed from is affirmed with costs against the appellant.
EN BANC
[G.R. No. 6625. October 24, 1911.]
JUANA CAGUIOA, administratrix of the estate of the deceased Emigdio Zarate, PetitionerAppellee, v. MARIA CALDERON, opponent-appellant.
M. Legazpi Florendo, for Appellant.
Pedro Ma. Sison, for Appellee.
SYLLABUS
1. WILLS; UNDUE INFLUENCE; MENTAL CAPACITY; LAWFUL WILL. Held: under the facts stated in the
opinion, that the will in question, was duly and legally authorized by the deceased, he being of sound mind
and memory, and that the same was not executed under threats or fear.

DECISION

JOHNSON, J.:

It appears from the record that the plaintiff, upon the 17th of February, 1910, presented a petition in the
Court of First Instance of the Province of Pangasinan, praying for the probation of the last will and testament
of Emigdio Zarate, deceased, in conformity with section 630 of the Code of Procedure in Civil Actions. The
petition was accompanied by the original will, marked "Exhibit A," of said Emigdio Zarate.
Due notice of said petition was given in accordance with law, and the hearing for the probation of said will
was fixed for the 9th of March, 1910. Later the said hearing was transferred to the 16th of July, 1910. On
the latter date the said Maria Calderon appeared, by her attorney, and opposed the probation of said will
upon the following grounds:
jgc:chanroble s.com.ph

"1. That the said Emigdio Zarate was mentally incapacitated at the time he authorized and signed his will.
"2. That he executed the said will under illegal and undue influence or persuasion on the part of some
persons who acted in behalf of the beneficiaries or heirs.
"3. That the signature of the testator was obtained by deceit or fraud, for the reason that it was not his
intention that all that was recorded in the said instrument should be his will at the time he signed it; for the
testator had informed the opponent, Maria Calderon, before and after the said will had been signed, that he
had not disposed of the one-half of the house and lot now mentioned in the third clause, letter (a), of the

said will, because the said testator recognized that the house and lot referred to belonged to the said Maria
Calderon.
"Therefore, the opponent prays the court to annul the will alleged to have been executed by Emigdio Zarate,
and to order that its probate be disallowed, with the costs against the petitioner."
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After hearing the evidence adduced pro and con, the lower court reached the following conclusion:

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"It having been proved completely on the part of the petitioner that the will in question was executed and
signed in entire conformity with all the requirements and solemnities set out in the Code of Civil Procedure,
the court overrules the opposition, sustains the petition, admits to probate Exhibit A, holding that the same
is legal in all its parts as the last will and testament of the deceased Emigdio Zarate."
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From that conclusion of the lower court, the oppositor appealed to this court and made the following
assignments of error:
jgc:chanrobles.com .ph

"I. The court erred in holding that the deceased, Emigdio Zarate, was in the full possession of his mental
faculties at the time of the execution of his will.
"II. The court erred in holding that the said Emigdio Zarate executed his last will and testament without
illegal persuasion or influence on the part of persons working in behalf of the heirs.
"III. The court erred in holding that Emigdio Zarate executed and signed his last will without fraud and
deceit being brought to bear upon him.
"IV. The court erred in holding that the testator signed his will in the presence of four witnesses, Sabino
Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate, who, on their part, signed, each of them,
in the presence of the others.
"V. The court erred in holding that it was proved that the will in question was executed and signed in
conformity with the requirements and solemnities set out in the Code of Civil Procedure.
"VI. The court erred in holding that the document Exhibit A, of the petitioner, is legal in all its parts, as the
last will and testament of the deceased Emigdio Zarate.
"VII. The court erred in rendering judgment in this matter without waiting for the written argument of both
sides.
"VIII. The court erred in not holding that all the proof taken together sustained the claim of the oppositor,
Maria Calderon.
"IX. The court erred in imposing the costs upon the oppositor."

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With reference to the first assignment of error above noted, it appears from the record that upon the 13th
day of January, 1910, Emigdio Zarate executed his last will and testament, the original of which appears in
the record and is marked "Exhibit A." Emigdio Zarate died on the 19th day of January, 1910.
From an examination of said Exhibit A it appears to have been signed by Emigdio Zarate and by four
witnesses, Sabino M. Sandoval, Esteban Sandoval, George Zarate and Eugenio Zarate. From the record it
appears that the testator dictated his will in the Pangasinan dialect and it was then translated into Spanish.
After the will had been written in Spanish it was read to the deceased and translated to him in the
Pangasinan dialect, and, according to the allegations of the appellee, the said Exhibit A received his approval
as his last will and testament.
The appellant alleges that at the time of the execution of the said alleged will of Emigdio Zarate, he was not
in the full possession of his mental faculties. This question was presented to the lower court. After hearing
the evidence, the lower court found that Emigdio Zarate, at the time of the execution of the said will, was in
the possession of his faculties. Two of the witnesses who signed the will, as well as others who were present
in the house at the time the said will was executed, testified that in their opinion Emigdio Zarate was of
sound mind and memory at the time he signed the said will. Practically the only testimony to the contrary
adduced during the trial of the cause in the lower court was the testimony given by two doctors, one of
whom had not seen the deceased for many months before his death, whose testimony was based wholly

upon hypothetical questions.

The appellant attempted to show that Emigdio Zarate for some months prior to his death had been troubled
with insomnia, as well as some other physical infirmities. The hypothetical questions were based upon the
question whether or not a person who had been suffering with insomnia for some months would have
sufficient mental capacity to execute a will. The two doctors who appeared on behalf of the opponents
testified that insomnia tended to destroy the mental capacity, but that there were times, even during the
period while they were suffering from insomnia, when they would be perfectly rational. Even admitting that
there was some foundation for the supposition that Emigdio Zarate had suffered from the alleged infirmities,
we do not believe that the testimony was sufficiently direct and positive, based upon the hypothetical
questions, to overcome the positive and direct testimony of the witnesses who were present at the time of
the execution of the will in question. The evidence adduced during the trial of the case, shows a large
preponderance of proof in favor of the fact that Emigdio Zarate was in the full possession of his mental
faculties at the time he executed his last will and testament.
The second and third assignments of error may be considered together. Upon the question presented by the
said assignments of error, the lower court found from the evidence that Emigdio Zarate executed his last will
and testament without threats, force or pressure or illegal influence. The basis of the claim that undue
influence had been exercised over Emigdio Zarate is that a day or two before the said will was made, it is
claimed by the opponent, Maria Calderon, that the deceased promised to will to her a certain house (onehalf of which seems to belong to her) upon the payment by her to the deceased of the sum of P300. The
P300 was never paid to the deceased and the said property was not willed to the defendant herein. The
agreement between Maria Calderon and the deceased, if there was an agreement, seems to have been
made between them privately, at least at the time the will was made the deceased made no reference to it
whatever. Those present at the time the will was made and the witnesses who signed the same heard no
statement or conversation relating to the said agreement, between the opponent herein and the deceased.
There is no proof in the record which shows that any person even spoke to the deceased with reference to
the willing of the said house to the opponent. There is nothing in the record to indicate in the slightest
degree that any person interested in the will, or who was present at the time of the making of the same,
induced or attempted to induce the deceased not to will the said house to the opponent herein. The theory
of the opponent that the deceased did not will to her the house in question is a mere presumption and there
is not a scintilla of evidence in the record to support it.
The fourth, fifth, and sixth assignments of error may be considered together.
During the trial of the cause two of the persons who signed the will as witnesses appeared and testified.
They testified that the deceased signed the will in their presence and in the presence of the other witnesses
to the will; that they each signed the will in the presence of the testator and in the presence of the other
witnesses; that the other two witnesses who were not called also signed the will in the presence of the
testator and in the presence of each of the other witnesses. There is no sufficient proof in the record to
overcome the declarations of these witnesses. We find no reason, therefore, for modifying the conclusion of
the lower court upon these assignments of error.
With reference to the seventh assignment of error, to wit: that the court erred in rendering judgment
without waiting for the written arguments of both parties, it may be said that it is customary for courts to
wait until the parties have presented their arguments before deciding a cause, nevertheless, it is not
reversible error for a court to decide a cause without waiting for written arguments to be presented by the
respective attorneys. It appears from the record (p. 102) that the trial of the cause was closed on the 5th of
August, 1910, and that the decision in the cause was not rendered until the 5th of October, 1910, or until
after two months had expired. There is nothing in the record which shows that either of the attorneys during
these two months asked for additional time in which to present their written arguments. It also appears of
record (p. 102) that the respective attorneys asked for fifteen days time within which to present their
written arguments. There is nothing in the record which shows whether they presented their written
arguments or not. If there was any fault for not having the written arguments presented before the decision
was rendered in the cause, it was clearly not the fault of the judge.
The arguments heretofore given seem to be sufficient also to answer the eighth and ninth assignments of
error.
Upon a full consideration of the evidence and the assignments of error, we are of the opinion that the will of
Emigdio Zarate, deceased, was executed and signed in entire conformity with all the requirements and
solemnities required by law. Therefore the judgment of the lower court is hereby affirmed with costs.

EN BANC
G.R. No. 6845

September 1, 1914

YAP TUA, petitioner-appellee,

vs.
YAP CA KUAN and YAP CA KUAN, objectors-appellants.
Chicote and Miranda for appellants.
O'Brien and DeWitt for appellee.
JOHNSON, J.:
It appears from the record that on the 23d day of August, 1909, one Perfecto Gabriel, representing
the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking
that the will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of
Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in
the city of Manila on the 11th day of August, 1909. Accompanying said petition and attached thereto
was the alleged will of the deceased. It appears that the will was signed by the deceased, as well as
Anselmo Zacarias, Severo Tabora, and Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th day of September,
1909. Timoteo Paez declared that he was 48 years of age; that he had known the said Tomasa
Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she
had executed a last will and testament; that he was present at the time of the execution of the same;
that he had signed the will as a witness; that Anselmo Zacarias and Severo Tabora had also signed
said will as witnesses and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew
Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the
city of Manila; that before her death she had executed a last will and testament; that he was present
at the time said last will was executed; that there were also present Timoteo Paez and Severo
Tabora and a person called Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the
presence of the witnesses; that he had seen her sign the will with his own eyes; that the witnesses
had signed the will in the presence of the said Tomasa Elizaga Yap Caong and in the presence of
each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily, and in his judgment,
she was in the possession of her faculties; that there were no threats or intimidation used to induce
her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to the legalization of
the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of
September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed
and admitted to probate. The will was attached to the record and marked Exhibit A. The court further
ordered that one Yap Tua be appointed as executor of the will, upon the giving of a bond, the amount
of which was to be fixed later.

From the record it appears that no further proceedings were had until the 28th of February, 1910,
when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were
interested in the matters of the said will and desired to intervene and asked that a guardian ad
litem be appointed to represent them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said
parties. Gabriel La O accepted said appointment, took the oath of office and entered upon the
performance of his duties as guardianad litem of said parties. On the 2d day of March, 1910, the
said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court
on the 29th day of September, 1909, was null, for the following reasons:
(a) Because the same had not been authorized nor signed by the witnesses as the law
prescribes.
(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was
not then mentally capacitated to execute the same, due to her sickness.
(c) Because her signature to the will had been obtained through fraud and illegal influence
upon the part of persons who were to receive a benefit from the same, and because the said
Tomasa Elizaga Yap Caong had no intention of executing the same.
Second. That before the execution of the said will, which they alleged to be null, the said Tomasa
Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th
day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been
negligent in presenting their opposition to the legalization of the will, said negligence was excusable,
on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of
September, 1909, and to grant to said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of section 113 of the Code of
Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial,
attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong,
and the affidavits of Severo Tabora, Clotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for a rehearing, the Honorable A.
S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the
18th day of March, 1910, and directed that notice should be given to the petitioners of said rehearing
and to all other persons interested in the will. At the rehearing a number of witnesses were
examined.
It will be remembered that one of the grounds upon which the new trial was requested was that the
deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August,

1909; that in support of that allegation, the protestants, during the rehearing, presented a witness
called Tomas Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon
being shown the will (of August 11, 1909) Exhibit A, testified that the name and surname on Exhibit
A, in his judgment were written by two different hands, though the given name is the same as that
upon Exhibit 1 (the will of August 6, 1909), because he found in the name "Tomasa" on Exhibit A a
similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with
the surname on Exhibit 1 he found that the character of the writing was thoroughly distinguished and
different by the tracing and by the direction of the letters in the said two exhibits; that from his
experience and observation he believed that the name "Tomasa" and "Yap Caong," appearing in the
signature on Exhibit A were written by different person.
Puzon, being cross-examined with reference to his capacity as an expert in handwriting, testified that
while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in the year 1882; that since that
time he had been a telegraph operator for seventeen years and that he had acted as an expert in
hand- writing in the courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of
the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in
accordance with her request and under her directions; that she had signed it; that the same had
been signed by three witnesses in her presence and in the presence of each other; that the will was
written in her house; that she was sick and was lying in her bed, but that she sat up to sign the will;
that she signed the will with great difficulty; that she was signed in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He testified that he
knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a
witness to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased,
Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it
before he (the witness) did; that he did not know whether anybody there told her to sign the will or
not; that he signed two bills; that he did not know La O; that he did not believe that Tomasa had
signed the will (Exhibit A) before he arrived at the house; that he was not sure that he had seen
Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen
at the door and he could not see; that he was called a a witness to sign the second will and was told
by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from
the patient, in the house but outside the room where the patient was; that the will was signed by
Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias
signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table
on which the will was written at the time it was signed or not; that there were many people in the
house; that he remembered the names of Pedro and Lorenzo; that he could not remember the
names of any others; that the will remained on the table after he signed it; that after he signed the
will he went to the room where Tomasa was lying; that the will was left on the table outside; that
Tomasa was very ill; that he heard the people asking Tomasa to sign the will after he was (the
witness) had signed it; that he saw Paez sign the will, that he could not remember whether Anselmo
Zacarias had signed the will, because immediately after he and Paez signed it, he left because he
was hungry; that the place where the table was located was in the same house, on the floor, about
two steps down from the floor on which Tomasa was.
Rufino R. Papa, was called as a witness for the purpose of supporting the allegation that Tomasa
Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A).

Papa declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had
treated her in the month of August; that he visited her first on the 8th day of August; that he visited
her again on the 9th and 10th days of August; that on the first visit he found the sick woman
completely weak very weak from her sickness, in the third stage of tuberculosis; that she was
lying in bed; that on the first visit he found her with but little sense, the second day also, and on the
third day she had lost all her intelligence; that she died on the 11th of August; tat he was requested
to issue the death certificate; that when he asked her (Tomasa) whether she was feeling any pain or
anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he
believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, was also called as a witnesses
during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a
child; that Tomasa was dead; that he had written the will exhibit A; that it was all in his writing except
the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request
of the uncle of Tomasa; that Lorenzo, the brother of the deceased, was the one who had instructed
him as to the terms of the will ; that the deceased had not spoken to him concerning the terms of the
will; that the will was written in the dining room of the residence of the deceased; that Tomasa was in
another room different from that in which the will was written; that the will was not written in the
presence of Tomasa; that he signed the will as a witness in the room where Tomasa was lying; that
the other witnesses signed the will in the same room that when he went into the room where the sick
woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his hands; that when Lorenzo
came to the bed he showed the will to his sister (Tomasa) and requested her to sign it; that she was
lying stretched out on the bed and two women, who were taking care of her, helped her to sit up,
supporting her by lacing their hands at her back; that when she started to write her name, he
withdrew from the bed on account of the best inside the room; when he came back again to the sick
bed the will was signed and was again in the hands of Lorenzo; that he did not see Tomasa sign the
will because he withdrew from the room; that he did not know whether Tomasa had been informed of
the contents of the will or not; he supposed she must have read it because Lorenzo turned the will
over to her; that when Lorenzo asked her to sign the will, he did not know what she said he could
not hear her voice; that he did not know whether the sick woman was him sign the will or not; that he
believed that Tomasa died the next day after the will had been signed; that the other two witnesses,
Timoteo Paez and Severo Tabora, had signed the will in the room with the sick woman; that he saw
them sign the will and that they saw him sign it; that he was not sure whether the testatrix could have
seen them at the time they signed the will or not; that there was a screen before the bed; that he did
not think that Lorenzo had been giving instructions as to the contents of the will; that about ten or
fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she started to sign
it; that the pen with which she signed the will as given to her and she held it.
Clotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong
and that she was dead; that she had made two wills; that the first one was written by La O and the
second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was
present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that
the second will was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias was not there;
that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the
first.

During the rehearing Cornelia Serrano and Pedro Francisco were also examined as witnesses.
There is nothing in their testimony, however, which in our opinion is important.
In rebuttal Julia e la Cruz was called as a witness. She testified that she was 19 years of age; that
she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa
during the last week of her illness; that Tomasa had made two wills; that she was present when the
second one was executed; that a lawyer had drawn the will in the dining room and after it had been
drawn and everything finished , it was taken to where Doa Tomasa was, for her signature; that it
was taken to her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that
there were many other people present also; that she did not see Timoteo Paez there; that she saw
Severo Tabora; that Anselmo Zacarias was present; that she did not hear Clotilde Mariano ask
Tomasa to sign the will; that she did not hear Lorenzo say to Tomasa that the second will was the
same sa the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when
Zacarias gave her some paper or document and asked her to sign it; that she saw Tomasa take hold
of the pen and try to sign it but she did not see the place she signed the document, for the reason
that she left the room; that she saw Tomasa sign the document but did not see on what place on the
document she signed; and that a notary public came the next morning; that Tomasa was able to
move about in the bed; that she had seen Tomasa in the act of starting to write her signature when
she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga
Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that he
saw Tomasa sign it on her head; that he did not hear Lorenzo ask Tomasa to sign the will; that
Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table
near the bed; that the table was outside the curtain or screen and near the entrance to the room
where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and
that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions;
that Tomasa had said that she sign the will; that the will was on a table near the bed of Tomasa; that
Tomasa, from where she was lying in the bed, could seethe table where the witnesses had signed
the will.
During the rehearing certain other witnesses were also examined; in our opinion, however, it is
necessary to quote from them for the reason that their testimony in no way affects the
preponderance of proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached
the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to
the record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap
Caong and admitted it to probate and ordered that the administrator therefore appointed should
continue as such administrator. From that order the protestants appealed to this court, and made the
following assignments of error:
I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa
Yap Caong, without the intervention of any external influence on the part of other persons.
II. The court erred in declaring that the testator had clear knowledge and knew what she was
doing at the time of signing the will.

III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the
first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the
law.
With reference to the first assignment of error, to wit, that undue influence was brought to bear upon
Tomasa Elizaga Yap Caong in the execution of her will of August 11th, 1909 (Exhibit A), the lower
court found that no undue influence had been exercised over the mind of the said Tomasa Elizaga
Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, one
Lorenzo, had attempted to unduly influence her mind in the execution of he will, upon the other
hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the
execution of the will, to influence her mind in any way. The lower court having had an opportunity to
see, to hear, and to note the witnesses during their examination reached the conclusion that a
preponderance of the evidence showed that no undue influence had been used. we find no good
reason in the record for reversing his conclusions upon that question.
With reference to the second assignment of error to wit, that Tomasa Elizaga Yap Caong was not of
sound mind and memory at the time of the execution of the will, we find the same conflict in the
declarations of the witnesses which we found with reference to the undue influence. While the
testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong,
yet, nevertheless, his testimony related to a time perhaps twenty-four hours before the execution of
the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to
her for her signature, she was of sound mind and memory and asked for a pen and ink and kept the
will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there
was a preponderance of evidence sustaining the conclusion that Tomasa Elizaga Yap Caong was of
sound mind and memory and in the possession of her faculties at the time she signed this will. In
view of the conflict in the testimony of the witnesses and the finding of the lower court, we do not feel
justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower court committed an error in
declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit
1), is identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1),
was not the question presented to the court. The question presented was whether or not she had
duly executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of
August 6, 1909. Several witnesses testified to that fact. The mere fact, however, that she executed a
former will is no proof that she did not execute a later will. She had a perfect right, by will, to dispose
of her property, in accordance with the provisions of law, up to the very last of moment her life. She
had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a
new one. Neither will the fact that the new will fails to expressly revoke all former wills, in any way
sustain the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the statement that "The signature of
Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in
her second will (Exhibit A)" the inference that she had not signed the second will and all the

argument of the appellants relating to said third assignment of error is based upon the alleged fact
that Tomasa Elizaga Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her
write the name "Tomasa." One of the witnesses testified that she had written her full name. We are
of the opinion, and we think the law sustains our conclusion, that if Tomasa Elizaga Yap Caong
signed any portion of her name tot he will, with the intention to sign the same, that the will amount to
a signature. It has been held time and time again that one who makes a will may sign the same by
using a mark, the name having been written by others. If writing a mark simply upon a will is
sufficient indication of the intention of the person to make and execute a will, then certainly the
writing of a portion or all of her name ought to be accepted as a clear indication of her intention to
execute the will. (Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs.
Dening, 8 Ad. and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's
Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylvania State, 220 (6 L. R. A., 353), and cited
by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very
suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was
found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an
ordinary folded sheet of note paper and bearing the signature simply of "Harriett." In this paper the
deceased attempted to make certain disposition of her property. The will was presented for probate.
The probation was opposed upon the ground that the same did not contain the signature of the
deceased. That was the only question presented to the court, whether the signature, in the form
above indicated, was a sufficient signature to constitute said paper the last will and testament of
Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In
deciding that question, Justice Mitchell said:
The precise case of a signature by the first name only, does not appear to have arisen either
in England or the United States; but the principle on which the decisions already referred to
were based, especially those in regard to signing by initials only, are equally applicable to the
present case, and additional force is given to them by the decisions as to what constitutes a
binding signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9
Alle, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U.
S.), 446.)
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held
to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient,
under the law requiring a signature by the person making a will, to make his mark, to place his
initials or all or any part of his name thereon. In the present case we think the proof shows, by a
large preponderance, that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least
sign her given name "Tomasa," and that is sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said that the argument which was
preceded is sufficient to answer it also.
During the trial of the cause the protestants made a strong effort to show that Tomasa Elizaga Yap
Caong did not sign her name in the presence of the witnesses and that they did not sign their names
in their presence nor in the presence of each other. Upon that question there is considerable conflict
of proof. An effort was made to show that the will was signed by the witnesses in one room and by
Tomasa in another. A plan of the room or rooms in which the will was signed was presented as proof
and it was shown that there was but one room; that one part of the room was one or two steps below

the floor of the other; that the table on which the witnesses signed the will was located upon the
lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was
possible for her to see the table on which the witnesses signed the will. While the rule is absolute
that one who makes a will must sign the same in the presence of the witnesses and that the
witnesses must sign in the presence of each other, as well as in the presence of the one making the
will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the
signatures are made where it is possible for each of the necessary parties, if they desire to see, may
see the signatures placed upon the will.
In cases like the present where there is so much conflict in the proof, it is very difficult for the courts
to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate
courts who do not see or hear the witnesses, to the conclusions of the trial courts who had that
opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof shows that
Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all
her faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court
admitting said will to probate is hereby affirmed with costs.
EN BANC
G.R. No. L-19142

March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased.

FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.
Marcaida, Capili and Ocampo for appellant.
Epimaco Molina for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is
no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it
may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the
deceased.
In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress
and under undue influence, and that at the time of the execution of the will he was not of sound and
disposing mind.
We do not think the opponent has succeeded in proving any of his allegations. There is no evidence
whatever showing that the testator acted under duress or undue influence and the only question of
fact which we need consider is whether the testator was of sound and disposing mind when the
document in question was executed.

Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He died about eight or nine o'clock in the
evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the
same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously
that coma implies complete unconsciousness, and that the testator, therefore, could not at that time
have been in possession of his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be aroused and have lucid intervals.
Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal witness, who
visited the deceased in the evening of December 25th, says he then seemed to be in a state
of coma and that in the forenoon of December 26th, when the doctor again visited him, he was in
"the same state of coma." Maximina Ong, the wife of the opponent, the only other witness for the
opposition, states that on December 26th the deceased could not talk and did not recognize anyone.
But all the witnesses presented by the petitioner, five in number, testify that the deceased was
conscious, could hear and understand what was said to him and was able to indicate his desires.
Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answer to questions.
That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be no doubt
that he was of sound mind and capable of making his will. And we see no reason to discredit any of
these witnesses; the discrepancies found between their respective versions of what took place at the
execution of the document are comparatively unimportant and so far from weakening their testimony
rather lend strength to it by indicating the absence of any conspiracy among them.
As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The
former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere
professional speculation cannot prevail over the positive statements of five apparently credible
witnesses whose testimony does not in itself seem unreasonable.
There is no direct evidence in the record showing that the publication of the time and place of the
hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in admitting the will to probate without
proof of such publication. This question not having been raised in the court below will not be
considered here.
Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also
provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed
by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr.
N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded.
There is no merit in this contention. When, as in this case, the testimony is taken by the
stenographer of the court and certified to by him, the provision quoted can only be regarded as
directory and a failure to observe the provision will not render the testimony inadmissible. (Reese vs.
Nolan, 99 Ala., 203.)
The order appealed from is affirmed, with the costs against the appellant. So ordered.

FIRST DIVISION
[G.R. No. 6650. December 5, 1913. ]
SANTIAGO GALVEZ, Petitioner-Appellant, v. CANUTA GALVEZ, Opponent-Appellee.
Eugenio Paguia, for Appellant.
Antonio Constantino, for Appellee.
SYLLABUS
1. WILLS; MENTAL CAPACITY OF THE TESTATOR. In order to hold that a testator, as the result of cholera,
was not of sound mind and did not have full knowledge of his acts and was incapable of executing a valid
will, it is indispensable that the proceedings disclose conclusive proof of his mental incapacity and of his lack
of reason and judgment at the time he executed his will in due form. In this case, aside from the evidence
by the witnesses who testified that the mental faculties of the testator were unimpaired, the contents of the
will, and the desire manifested by the latter to rectify an error he incurred in the execution of his first will,
show that the testator was of sound mind and perfectly aware of his duties with respect to the legal,
inviolable rights of his daughter and sole heir.
2. ID.; ID.; PHYSICIANS TESTIMONY BASED ON A GENERAL RULE. Statements by a physician who did
not see or examine the testator at the time the latter was making his will, based on the condition and
mental state of a cholera patient in ordinary cases and in the regular course of the disease, cannot serve as
a ground for declaring the testator incompetent when, notified of an error incurred by him in his firsts will
executed a few hours before, and exhibited in court, he declared his desire to correct the same by executing
a second will; inasmuch as the testimony of the subscribing witnesses and of the person who drew up the
document, shows that the mental and physical condition of the testator was an exception to the general rule
enunciated by the said physician, since the patient demonstrated that he had sufficient moral energy and
clear intelligence, in spite of the inroads made by the disease, to have been able to execute his last will and
testament in accordance with the requirements of the law.

DECISION

TORRES, J. :

This is appeal was raised by counsel for Santiago Galvez from the judgment of October 25, 1910, whereby
the Honorable Simplicio del Rasorio, judge, denied the petition presented by the said Galvez for the probate
of the will, Exhibit B, and appointed as adminsitratix of the testators estate, the latters only legitimate
daughter, Canuta Galvez, under condition that she furnish bond in the sum of P2,000 for the faithful
discharged of the duties of her office.
Counsel for Santiago Galvez petitioned the Court of First Instance of Bulacan for the probate of the will
which it was alleged Victor executed in the dialect of the province, on August 12, 1910, in presence of the
witnesses Juan Dimanlig, J. Leoquinco, and Nazaria Galves. This instrument appears also to have been
signed by the witness Lorenzo Galvez, below the name and surname of the testator. (p. 3, B. of E.,
translated into Spanish on p.5.)
Further on in the same record, pages 6 to 7, there appears another will written in Tagalog and executed on
the same date by Victor Galvez in presence of the witnesses Cirilo Paguia, Florentino Sison, and Juan
Mendoza.
In the course of the proceedings various witnesses were examined by the petitioner and by the respondent,
Canuta Galvez, the only daughter of the alleged testator, and the attorney Antonio Constantino stated that
he waived the right to present evidence and acquiesced in the petition made by Santiago Galvez for the
probate of the will, in view of a transaction entered into by the parties; but the court did not accept the
compromise, on the ground that it is improper to hold that a will is the faithful expression of the last wishes

of a decedent, upon the mere fact of the parties petitioning to that effect, when such will, as in the case at
bar, was assailed at the commencement of the suit.
After due trial the judgment aforementioned was rendered, from which an appeal was entered by counsel for
the petitioner, Santiago Galvez.
This case deals with the probate of the second will executed by Victor Galvez on August 12, 1910, and
signed in his presence by the witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, and, as the
testator was no longer able to sign on account of his sickness, Lorenzo Galvez, at his request, affixed his
own signature to the instrument, for him and below his written name. This will, written in Tagalog and
translated into Spanish, is marked as Exhibit B and is found on pages 3 and 5 of the bill of exceptions.
The other will, written in Tagalog and marked Exhibit A, was presented during the proceedings; it was the
first one the testator executed on the same date, and, for the purpose of correcting an error contained in
this first will, he executed another will, the second, which is the one exhibited for probate.
Notwithstanding the opposition by Canuta Galvez, the testators daughter, who alleged that her father, owing
to his very serious sickness with cholera, lacked the intellectual capacity and clear judgment requisite for
making a will, and notwithstanding her testimony adduced in corroboration of her brief, the record
sufficiently proved the contrary; the subscribing witnesses to the will affirmed under oath that they were
present when Victor Galvez, then such in his house, stated to them that the document read before them by
Lorenzo Galvez contained his last will and testament, and that, as the testator was no longer able to sign, he
charged his nephew Lorenzo to do so in his stead, which the latter did by affixing his own signature to the
document, after having written at the foot of the same the name and surname of the testator, Victor Galvez,
who, as these witnesses observed, was of sound mind and in the full enjoyment of his mental faculties; he
talked intelligently and with perfect knowledge of what was taking place. They further testified that they all,
including the said Lorenzo Galvez, signed the will in the presence of the testator, Victor Galvez, who was at
the time lying on his bed.
In order to hold that Victor Galvez, on account of serious sickness, was not then of sound mind and did not
have full knowledge of his acts and, therefore, was incapable to execute a will, it is necessary that the
proceedings disclose conclusive proof of his mental incapacity and of his evident lack of reason and
judgment at the time he executed his will in the presence of the witnesses whose signatures appear at the
foot thereof, for these witnesses positively affirmed that Victor Galvez, on executing his will, showed that he
was in full possession of his intellectual faculties and was perfectly cognizant of his acts.
The physician Dr. Vicente de Jesus, in his testimony, referred to the effects and results of cholera on a
patient in ordinary cases and in the regular course of this disease; but his statements, taken in general,
cannot, in the present suit, serve as a ground upon which to predicate incapacity, for the reason that he did
not examine Victor Galvez, nor did he even see him between the hours of 12 in the morning and 3 in the
afternoon of the 12th of August, 1910, during which period the testator ordered his will drawn up and the
attesting witnesses signed it, Galvez having died at about 6 oclock that same afternoon. It may be true that
cholera patients do, in the majority of cases, become incapacitated in the manner described by the
witnesses; but there may be exceptions to the general rule, and to judge from the testimony of the
witnesses who saw and communicated with the patient Victor Galvez at the time he executed his will, his
physical and mental condition mush have been an exception, since he demonstrated that he had sufficient
energy and clear intelligence to execute his last will in accordance with the requirements of the law.
Besides the attestation of the aforesaid subscribing witnesses, the contents of the will and the testators
positive determination to rectify the error he incurred in the execution of this first will, show that Victor
Galvez was in his sound mind and was perfectly aware of his duties in respect to the legal, inviolable rights
of his daughter and sole heir, Canuta Galvez.
Inasmuch as, in the drafting and execution of the second will (Exhibit B), signed in the name of the testator
by Lorenzo Galvez and the witnesses Juan Dimanlig, Nazaria Galvez, and J. Leoquinco, the formalities
prescribed by section 618 of the Code of Civil Procedure were observed, for the testators name appears
written at the foot of the will and under this name Lorenzo Galvez signed by direction of the testator himself,
and the instrument was also signed by the attesting witnesses before mentioned who affirmed that they
heard and attested the dispositions made by the testator and witnessed the reading of the will, that they
were present when the said Lorenzo Galvez signed the will in the name of the testator and that they signed
it in the presence of all the persons assembled in the latters house, the conclusion is inevitable that Victor
Galvez, in executing his will, did so with a sound mind and the full use of his mental faculties; therefore, the

will must be admitted to probate.

For the foregoing reasons, with a reversal of the judgment appealed from in so far as it denies the probate
of the said will, we hereby hold that the same was duly executed by Victor Galvez and expresses his last
wishes, and we affirm the rest of the said judgment, with respect to the appointment, as administratrix, of
Canuta Galvez, the testators daughter and sole heir.

EN BANC
G.R. No. L-21015

March 24, 1924

MIGUELA CARRILLO, for herself and as administratrix of the intestate estate of ADRIANA
CARRILLO, deceased, plaintiff-appellant,
vs.
JUSTINIANO JAOJOCO and MARCOS JAOJOCO, defendants-appellees.
Crispin Oben and Gibbs & McDonough for appellant.
Salinas & Salinas for appellees.
AVANCEA, J.:
On the evening of December 9, 1918, Adriana Carrillo executed a document of sale of eleven
parcels of land, with one-half of the improvements thereon, situated in the barrio of Ulong-Tubig,
municipality of Carmona, Province of Cavite, containing an area of 330,409 square meters, in favor
of Marcos Jaojoco for the price of P4,000 which the seller admitted having received. Nine days
afterwards Adriana Carrillo was declared mentally incapacitated by the Court of First Instance and
later on died; and proceeding having been instituted for the administrator and settlement of her
estate, her sister Miguela Carrillo was appointed judicial administratrix of said estate. In her capacity
as such administratrix, Miguela Carrillo now brings this action for the annulment of said contract of
sale executed by Adriana Carrillo on December 9, 1918, against Marcos Jaojoco, the purchaser, and
his father Justiniano Jaojoco. The defendants were absolved from the complaint, and from this
judgment the plaintiff appealed.
The plaintiff has attempted to prove that prior to the year 1918 and specially in the year 1917,
Adriana Carrillo performed acts which indicated that she was mentally deranged. We have made a
thorough examination of the character of those acts, and believe that they do not necessarily show
that Adriana Carrillo was mentally insane. The same thing can be said as to her having entered the
"Hospital de San Lazaro" and the "Hospicio de San Jose," in the absence of an affirmative showing
to her motive for entering said institutions, for while it is true that insane persons are confined in
those institutions, yet there also enter persons who are not insane. Against the inference that from
said acts the plaintiff pretends to draw, in order to assert the mental incapacity of Adriana Carrillo in
that time, there is in the record evidence of acts while more clearly and more convincingly show that
she must not have been mentally incapacitated before the execution of the document sought to be
annulled in this action. In January, 1917, her husband having died, she was appointed judicial
administratrix of the latter's estate, and to his end she took the oath of office, gave the proper bond
discharged her functions in the same manner and with the same diligence as any other person of
knowingly sound mind would have done. Documents, were introduced which show complex and
numerous acts of administration performed personally by said Adriana Carrillo, such as the
disposition of various and considerable amounts of money in transactions made with different
persons, the correctness of said acts never having been, nor can it be, put in question. We have
given special attention to the fact of Adriana Carrillo having executed contracts of lease, appeared in

court in the testate proceeding in which she was administratrix, and in fact continued acting as such
administratrix of the estate of her husband until August, 1917, when for the purpose of taking
vacation, she requested to be relieved from the office. On November 13, 1918, Adriana Carrillo
entered the "Hospital de San Juan de Dios" by reason of having had an access of cerebral
hemorrhage with hemiplegia, and there she was attended by Doctor Ocampo until she left on the
18th of December of the same year very much better off although not completely cured. Asked about
the mental incapacity of Adriana Carrillo during her treatment, Doctor Ocampo answered that he did
not pay attention to it, but that he could affirm that the answers she gave him were responsive to the
questions put to her, and that the hemiplegia did not affect her head but only one-half of the body.
After leaving the "Hospital de San Juan de Dios" on December 8, 1918, Adriana Carrillo called at the
office of the notary public, Mr. Ramos Salinas, and there executed the contract of sale in question on
the 9th of that month. The notary, Mr. Salinas, who authorized the document, testified that on that
day he has been for some time with Adriana Carrillo, waiting for one of the witnesses to the
document, and he did not notice anything abnormal in her countenance, which on the contrary,
appeared to him dignified, answering correctly all the questions he made to her without
inconsistencies or failure of memory, for which reason, says this witness, he was surprised when
afterwards he learned that the mental capacity of Adriana Carrillo was in question.
It must be noted that the principal witness for the plaintiff and the most interested party in the case,
being the plaintiff herself, was the surety of Adriana Carrillo when the latter was appointed judicial
administratrix of the estate of her husband in 1917. It cannot be understood, if Adriana Carrillo was
in that time mentally incapacitated, why Miguela Carrillo, the plaintiff, who knew it, consented to be a
surety for her. It must likewise be noted that the other witnesses of the plaintiff, who testified to the
incapacity of Adriana Carrillo, also made transactions with her precisely at the time, when according
to them, she was mentally incapacitated. In view of all of this, which is proven by documents and the
testimonies of witnesses completely disinterested in the case, it cannot be held that on December 9,
1918, when Adriana Carrillo signed the document, she was mentally incapacitated.
The fact that nine days after the execution of the contract, Adriana Carrillo was declared mentally
incapacitated by the trial court does not prove that she was so when she executed the contract. After
all, this can perfectly be explained by saying that her disease became aggravated subsequently.
Our conclusion is that prior to the execution of the document in question the usual state of Adriana
Carrillo was that of being mentally capable, and consequently the burden of proof that she was
mentally incapacitated at a specified time is upon him who affirms said incapacity. If no sufficient
proof to this effect is presented, her capacity must be presumed.
Attention is also called to the disproportion between the price of the sale and the real value of the
land sold. The evidence, however, rather shows that the price of P4,000 paid for the land, which
contained an area of 33 hectares, represents it real value, for its is little more than P100 per hectare,
which is approximately the value of other lands of the same nature in the vicinity. But even
supposing that there is such a disproportion, it alone is not sufficient to justify the conclusion that
Adriana Carrillo was mentally incapacitated for having made the sale under such conditions. Marcos
Jaojoco is a nephew of Adriana Carrillo, and Justiniano Jaojoco her brother-in-law, and both
defendants, who are father and son, had Adriana Carrillo in charge, took her to the "Hospital de San
Juan de Dios," and cared for her during the time she was there, and for such acts they may have
won her gratitude. Under these circumstances there is nothing illegal, or even reprehensible, and
much less strange in Adriana Carrillo's having taken into account those services rendered her by the
defendants and reciprocated thereof by a favorable transaction. Having no ascendants and

descendents, she could, in consideration of all the these circumstances, have even given as a
donation, or left by will, these lands to the defendants.
The judgment appealed from is affirmed with costs against the appellant. So ordered.
EN BANC
G.R. No. L-10027

November 13, 1915

ROSENDO HERNAEZ y ESPINOSA, plaintiff-appellant,

vs.
MATEO HERNAEZ y ESPINOSA, ET AL., defendants-appellants.
Ruperto Montinola for plaintiff.
Enrique C. Locsin for defendants.

TRENT, J.:
The spouses, Pedro Hernaez and Juana Espinosa, died, leaving several legitimate descendants.
Neither of their estates had been divided up to the date of the institution of this action, but were both
under administration. Their son, Domingo Hernaez y Espinosa, sold all his interest in both his
father's and mother's estate to his son, Vicente Hernaez y Tuason, on November 6, 1901.
Notwithstanding the fact that Domingo Hernaez y Espinosa had thus parted with all his interest in the
estates of his two parents, he executed a document of sale in favor of Alejandro Montelibano y
Ramos on February 27, 1907, in which he purported to convey all his undivided interest in his
mother's estate. On the same date he executed another document of sale in which he purported to
convey to Jose Montelibano Uy-Cana four-eighteenths of his interest in his mother's estate. Both of
these sales were made with the connivance of his son, Vicente Hernaez y Tuason. Hence, although
Vicente Hernaez y Tuason had actually purchased all of his father's interests in the estates of Pedro
Hernaez and Juana Espinosa as early as November 6, 1901, and was, on February 27, 1907, the
undoubted owner thereof, he is effectually estopped from asserting his title as against either of the
vendees mentioned in the documents of sale dated February 27, 1907, to which we have just
referred. (Code Civ. Pro., sec. 333, No. 1.) Bigelow on Estoppel (p. 607) says:
. . . it is now a well-established principle that where the true owner of property, for however
short a time, holds out another, or, with knowledge of his own right, allows another to appear
as the owner of or as having full power of disposition over the property, the same being in the
latter's actual possession, and innocent third parties are thus led into dealing with such
apparent owner, they will be protected.
On August 19, 1912, Jose Montelibano Uy-Cana sold his interest in the estate to Alejandro
Montelibano y Ramos. By this transfer, the latter stood owner of all the interest of Domingo Hernaez
y Espinosa in the estate of Pedro Hernaez, and five-eighteenths of his interest in the estate of Juana
Espinosa as against Vicente Hernaez y Espinosa.

It is admitted that Rosendo Hernaez y Espinosa, another son of the deceased spouses administrator
of the estates, was notified of Montelibano's purchases on January 8, 1913, when he received notice
of Montelibano's motion, entered in the administration proceedings, asking that he (Montelibano) be
substituted as assignee of the interests of various heirs of the estate which he had acquired by
purchase. Notwithstanding this knowledge, Rosendo Hernaez y Espinosa entered into a contract of
sale with Vicente Hernaez y Tuason, whereby the latter purported to convey all the interest, which he
had acquired from his father, in the estate of the deceased spouses, Pedro Hernaez and Juana
Espinosa. It will be remembered that he purchased his father's share of the estate on November 6,
1901; that he is estopped from asserting title to any interest in his grandfather's estate and in fiveeighteenths of his grandmother's estate. Rosendo Hernandez y Espinosa purchased with full
knowledge of these facts. He, therefore, acquired thirteen-eighteenths of the interest of Domingo
Hernaez y Espinosa in the estate of the latter's mother nothing more.
lawph!l.net

That rule is that the holder [Alejandro Montelibano y Ramos] of a prior equitable right has
priority over the purchaser [Rosendo Hernandez y Espinosa] of a subsequent estate
(whether legal or equitable) without value, or with notice of the equitable right, but not as
against a subsequent purchaser for value and without notice. (Ewart on Estoppel, p. 199.)
Alejandro Montelibano y Ramos has acquired in his interest in the estate of the deceased spouses
for a valuable consideration and in good faith, and there remains to the plaintiff, Rosendo Hernaez y
Espinosa, only the right of subrogation allowed him by article 1067 of the Civil Code, which reads as
follows:
If any of the heirs should sell his hereditary rights to a stranger before the division, all or any
of the co-heirs may subrogate himself in the place of the purchaser, reimbursing him for the
value of the purchase, provided they do so within the period of a month, to be counted from
the time they were informed thereof.
On January 24, 1913, the plaintiff instituted this action seeking to subrogate himself in the rights
acquired by Montelibano in the estate. Unless the plaintiff can be charged with actual notice of the
conveyance by which Montelibano acquired these interests, prior to January 8, 1913, it is clear that
he has opportunely asserted his right of subrogation. This is purely a question of fact. As to the sales
whereby Domingo Hernaez y Espinosa parted with that portion of his interest in the estate which is
now held by Alejandro Montelibano, as well as to those sales made by other heirs to Montelibano,
the trial court found that the plaintiff, Rosendo Hernaez y Espinosa, was not chargeable with notice
prior to January 8, 1913. After a careful examination of the record we see no reason for disturbing
this finding of fact. As a consequence, the plaintiff, Rosendo Hernaez y Espinosa, is entitled to
exercise his right of subrogation in accordance with article 1067, above quoted.
lawph!1.net

The interest which Jose Montelibano Uy-Cana purchased from Domingo Hernaez y Espinosa on
February 27, 1907, for the sum of P4,500, he afterwards transferred to Alejandro Montelibano y
Ramos for the sum of P10,000. In rendering judgment, the trial court decreed that the plaintiff,
Rosendo Hernaez y Espinosa, should pay the latter sum for the privilege of exercising the right of
subrogation. This was error. Article 1067 of the Civil Code provides that the co-heir may exercise this
right of subrogation upon the payment to the purchaser of another heir's interest, "el precio de la
compra" (the purchase price). Obviously, if the interest had not been resold, the plaintiff, Rosendo
Hernaez y Espinosa, would have had to pay only the price for which Uy-Cana acquired it. The
purpose of the article cannot be evaded by a reconveyance of the interest to a third person at a

higher price. Subsequent purchasers of the interest acquire it burdened with the right of subrogation
of co-heirs at the price for which the heir who sold it parted with it.
It is urged that the prices in some of the deeds of sale by which Alejandro Montelibano y Ramos
purchased the interest of various heirs in the estates are fictitious. This is a question of fact upon
which both parties adduced evidence, and we concur in the opinion of the trial court that there is no
basis to the charge. For the foregoing reasons, the judgment of the court is modified by substituting,
as the price of subrogation of the interest originally purchased by Jose Montelibano Uy-Cana, the
sum of P4,500, as set out in Exhibit 7, for the sum of P10,000, the consideration expressed in
Exhibit 10. As modified, the judgment appealed from is affirmed, without costs. So ordered.
EN BANC
C.A. No. 4

March 21, 1946

In the matter of the testate estate of the late Encarnacion Neyra. TRINIDAD NEYRA, petitionerappellee,
vs.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. DE BLANCO, oppositorsappellants.
TEODORA NEYRA, PILAR DE GUZMAN and MARIA JACOBO VDA. BLANCO, petitionersappellants,
vs.
TRINIDAD NEYRA and EUSTAQUIO MENDOZA, oppositors-appellees.
Lucio Javillonar for oppositors and appellants.
Alejandro M. Panis for applicants and appellees.
DE JOYA, J.:
This is an appeal from a decree rendered by the Hon. Gervasio Diaz, Judge of the Court of First
Instance of the City of Manila, on December 3, 1943, admitting to probate a will dated November 3,
1942, executed by the deceased Encarnacion Neyra; at the same time denying the probate of a
previous will dated September 14, 1939, alleged to have been executed by the said testatrix.
Trinidad Neyra, beneficiary in the will executed on November 3, 1942, filed, on November 10, 1942,
a petition in the Court of First Instance of Manila, for the probate of said will.
On December 19, 1942, Teodora Neyra, Pilar de Guzman, and Maria Jacobo Vda. de Blanco, who
had not been named as beneficiaries in said will, filed on opposition to the probate of the said will
dated November 3, 1942, alleging (1) that at the time of the alleged execution of the said will, the
testatrix Encarnacion Neyra no longer possessed testamentary capacity; (2) that her thumb marks
on said instrument had been procured by means of fraud by petitioner Trinidad Neyra, and that
Encarnacion Neyra never intended to consider said document as will; (3) that the alleged will, dated
November 3, 1942, had not been executed in the manner and form prescribed by law; and(4) that
Encarnacion Neyra, since September 14, 1939, had executed a will, naming as beneficiaries said
oppositors and others, and that said will had never been revoked or amended in any manner
whatsoever.

On December 26, 1942, petitioner Trinidad Neyra filed a reply denying the allegations in the
opposition.
Subsequently, said oppositors filed a counter petition, asking for the probate of the first will executed
by Encarnacion Neyra, on September 14, 1939, marked as Exhibit 16. On March 16, 1943, the
legatees Trinidad Neyra and Eustaquio Mendoza filed their opposition to the probate on said will
marked as Exhibit 16, and amended said opposition, on September 15, 1943, to which Teodora
Neyra and the others filed a reply, on September 20, 1943.
On the dates set for the hearing on the petition filed by Trinidad Neyra, and the counter petition
mentioned above, said petitioner as well as the oppositors, presented evidence, testimonial and
documentary. The witnesses presented by the petitioner Trinidad Neyra were Mons. Vicente
Fernandez, Rev. Fr. Teodoro Garcia, Sor. Andrea Montejo, Dr. Moises B. Abad, Dr. Eladio A.
Aldecoa, Atty. Ricardo Sikat, petitioner Trinidad Neyra herself, and Atty. Alejandro M. Panis, who had
acted as scrivener in the preparation of said will dated November 3, 1942.
Teodora Neyra and the other oppositors also presented several witnesses, the principal among
whom were Presentacion Blanco, Caferina de la Cruz, Acislo Manuel, Dr. Dionisio Parulan, an
alleged medical expert, and the oppositors Teodora Neyra and Pilar de Guzman themselves.
After considering the evidence, the lower court rendered a decree admitting to probate the will dated
November 3, 1942; at the same time denying the probate of the will dated September 14, 1939.
From said decision Teodora Neyra and the other oppositors appealed to the Court of Appeals for the
City of Manila, assigning several errors, which may be reduced to the following, to wit, that the trial
court erred (1) in finding that Encarnacion Neyra wanted to make a new will; (2) in declaring that
there was reconciliation between Encarnacion Neyra and her sister Trinidad; (3) in accepting as
satisfactory the evidence submitted by the petitioner; (4) in ignoring the evidence submitted by the
oppositors; and (5) in not admitting to probate the will dated September 14, 1939.
The evidence, testimonial and documentary, adduced during the trial of the case in the court below,
has satisfactorily and sufficiently established the following facts:
That Severo Neyra died intestate in the City of Manila, on May 6, 1938, leaving certain properties
and two children, by his first marriage, named Encarnacion Neyra and Trinidad Neyra, and several
other relatives; that after the death of Severo Neyra, the two sisters, Encarnacion Neyra and Trinidad
Neyra, had serious quarrels, in connection with the properties left by their deceased father, and so
serious were their dissensions that, after March 31, 1939, they had two litigations in the Court of
First Instance of Manila, concerning said properties (Exhibits 8 and 9): In the first case, filed on
March 31, 1939, Trinidad Neyra and others demanded from Encarnacion Neyra et al. the annulment
of the sale of the property located at No. 366 Raon Street, Manila, and it was finally decided in favor
of the defendants in the Court of First Instance and in the Court of Appeals, on December 21, 1943
(G.R. No. 8162, Exhibit 9).
In the second case, filed on October 25, 1939, Trinidad Neyra demanded from Encarnacion Neyra,
one-half () of the property described therein, and one-half () of the rents, and the Court of First
Instance decided in favor of the plaintiff, but at the same time awarded in favor of the defendant
P727.77, under her counterclaim; and Trinidad Neyra again elevated the case to the Court of
Appeals for Manila (G.R. No. 8075) Exhibit 8, which was decided, pursuant to the document of

compromise marked as Exhibit D; and the petition for reconsideration filed therein still remains
undecided.
That Encarnacion Neyra, who had remained single, and who had no longer any ascendants,
executed a will on September 14, 1939, marked Exhibit 16, disposing of her properties in favor of the
"Congregacion de Religiosas de la Virgen Maria" and her other relatives named Teodora Neyra, Pilar
de Guzman and Maria Jacobo Vda. de Blanco, making no provision whatsoever in said will in favor
of her only sister Trinidad Neyra, who had become her bitter enemy; that when the said will was
brought to the attention of the authorities of said Congregation, after due deliberation and
consideration, said religious organization declined the bounty offered by Encarnacion Neyra, and
said decision of the Congregation was duly communicated to her; that in order to overcome the
difficulties encountered by said religious organization in not accepting the generosity of Encarnacion
Neyra, the latter decided to make a new will, and for that purpose, about one week before her death,
sent for one Ricardo Sikat, an attorney working in the Law Offices of Messrs. Feria and LaO, and
gave him instructions for the preparation of a new will; that Attorney Sikat, instead of preparing a
new will, in accordance with the express instructions given by Encarnacion Neyra, merely prepared
a draft in the form of a codicil, marked as Exhibit M, amending said will, dated September 14, 1939,
again naming said religious organization, among others, as beneficiary, and said draft of a codicil
was also forwarded to the authorities of the said religious organization, for their consideration and
acceptance.
In the meanwhile, Encarnacion Neyra had become seriously ill, suffering from Addison's disease,
and on October 31, 1942, she sent for her religious adviser and confessor, Mons. Vicente Fernandez
of the Quiapo Church to make confession, after which she expressed her desire to have a mass
celebrated in her house at No. 366 Raon Street, City of Manila, so that she might take holy
communion, in view of her condition; that following the request of Encarnacion Neyra, Mons.
Fernandez caused the necessary arrangements to be made for the celebration of holy mass in the
house of Encarnacion Neyra, and, as a matter of fact, on November 1, 1942, holy mass was
solemnized in her house, Fr. Teodoro Garcia, also of the Quiapo Church, officiating in said
ceremony, on which occasion, Encarnacion Neyra, who remained in bed, took holy communion; that
after said religious ceremony had been terminated, Father Garcia talked to Encarnacion Neyra and
advised reconciliation between the two sisters, Encarnacion Neyra and Trinidad Neyra. Encarnacion
Neyra accepted said advice and at about noon of the same day (November 1, 1942), sent Eustaquio
Mendoza to fetch her sister Trinidad Neyra, who came at about 2:30 that same afternoon; that on
seeing one another, the two greeted each other in a most affectionate manner, and became
reconciled; that the two had a long and cordial conversation, in the course of which the two sisters
also talked about the properties left by their deceased father and their litigations which had reached
the Court of Appeals for the City of Manila, and they agreed to have the said appeal dismissed, on
the condition that the property involved therein, consisting of a small house and lot, should be given
exclusively to Trinidad Neyra, on the condition that the latter should waive her claim for her share in
the rents of said property, while under the administration of Encarnacion Neyra, and that the two
should renounce their mutual claims against one another. It was also agreed between the two sisters
to send for Atty. Alejandro M. Panis, to prepare the necessary document embodying the said
agreement, but Attorney Panis could come only in the afternoon of the following day, November 2,
1942, when Encarnacion gave him instructions for the preparation of the document embodying their
agreement, and other instructions relative to the disposition she wanted to make of her properties in
her last will and testament; that Attorney Panis prepared said document of compromise or
agreement marked as Exhibit D, as well as the new will and testament marked as Exhibit C, naming
Trinidad Neyra and Eustaquio Mendoza beneficiaries therein, pursuant to the express instructions

given by Encarnacion Neyra, and said instruments were ready for signature on November 3, 1942;
that in the afternoon of that day, November 3, 1942; Attorney Panis read said will and testament
marked as Exhibit D to Encarnacion Neyra slowly and in a loud voice, in the presence of Fr. Teodoro
Garcia, Dr. Moises B. Abad, Dr. Eladio Aldecoa, herein petitioner Trinidad Neyra, and others, after
which he asked her if its terms were in accordance with her wishes, if she had anything else to add,
or anything to be changed in said will; and as Encarnacion Neyra stated that the terms of said will
were in accordance with her wishes and express instructions, she asked for the pad and the will
Exhibit C and, with the help of a son of herein petitioner, placed her thumb mark at the foot of said
will, in the presence of the three attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa, and
Atty. Alejandro M. Panis, after which the attesting witnesses signed at the foot of the document, in
the presence of the testatrix Encarnacion Neyra, and of each and everyone of the other attesting
witnesses. Fr. Teodoro Garcia and petitioner Trinidad Neyra and several others were also present.
On November 4, 1942, the testatrix Encarnacion Neyra, due to a heart attack, unexpectedly died.
Although the "Congregacion de Religiosas de la Virgen Maria" had again decided not to accept the
provision made in its favor by the testatrix Encarnacion Neyra in the proposed codicil prepared by
Atty. Ricardo Sikat, said decision could not be communicated to the testatrix, before her death.
Mons. Vicente Fernandez and Fr. Teodoro Garcia testified as to the request made on October 31,
1942, by Encarnacion Neyra for the celebration of holy mass in her house, on November 1, 1942;
that said mass was in fact solemnized in her house, on that date, in the course of which the testatrix
Encarnacion Neyra took holy communion; that on the same day, after the mass, Encarnacion held a
long conversation with Father Garcia, in the course of which, said priest advised her to have
reconciliation with her sister Trinidad; and that said advise was accepted by Encarnacion.
But the testimony of Trinidad Neyra, it has been shown that Encarnacion sent Eustaquio Mendoza to
fetch her, and that in fact she came to the house of Encarnacion, at about 2:30 o'clock in the
afternoon that same day, November 1, 1942, with said Eustaquio Mendoza; that on seeing one
another, Encarnacion and Trinidad Neyra greeted each other most affectionately, forgiving one
another, after which they talked about the property left by their deceased father and the litigation
pending between them; and the two sisters agreed to settle their case, which had been elevated to
the Court of Appeals for the City of Manila, concerning a certain house and lot, on the understanding
that said property should be given exclusively to Trinidad, and that the latter should renounce her
claim against Encarnacion, for her share in the rents collected on said property, and, at the same
time, Encarnacion renounced her claim for P727.77 against Trinidad; and that it was also agreed
between the two sisters that Atty. Alejandro M. Panis should be called to prepare the necessary
papers for the settlement of said case. Presentacion Blanco, a witness for the oppositors, also
testified substantially to the foregoing facts.
By the testimony of Trinidad Neyra and Atty. Alejandro M. Panis, and the other attesting witnesses, it
has also been shown that Atty. Alejandro M. Panis came in the afternoon of the following day,
November 2, 1942, and received instructions from Encarnacion Neyra, not only for the preparation of
said agreement, but also for the preparation of a new will, and consequently Attorney Panis prepared
said document of compromise and the will, dated November 3, 1942, which were both thumb
marked, in duplicate, in the afternoon of that day, by Encarnacion Neyra, who was then of sound
mind, as shown by her appearance and conversation, aided by a son of Trinidad Neyra, on her bed
in the sala, in the presence of the attesting witnesses, Dr. Moises B. Abad, Dr. Eladio R. Aldecoa,
and Atty. Alejandro M. Panis, who signed in the presence of the testatrix and of each other.

Father Teodoro Garcia was also present at the signing of the will, at the request of Encarnacion
Neyra, and so was Trinidad Neyra.
On November 4, 1942, due to a heart attack as a consequence of Addison's disease, perhaps,
Encarnacion Neyra expired, at about 3 o'clock in the morning.
Oppositor Teodora Neyra, her young daughter Ceferina de la Cruz, and Presentacion Blanco,
daughter of oppositor Maria Jacobo Vda. de Blanco, practically corroborated the testimony of the
witnesses of the petitioner, with reference to the signing of documents, in the bedroom of
Encarnacion Neyra, on November 3, 1942.
Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz, witnesses for the oppositors, testified,
however, that when the thumb mark of Encarnacion Neyra was affixed, as stated above, to the
document of compromise in question, dated November 3, 1942, she was sleeping on her bed in
the sala; and that the attesting witnesses were not present, as they were in the caida.
But Ceferina de la Cruz, witness for the oppositors, also stated that the attesting witnesses signed
the documents thumb marked by Encarnacion Neyra, in the sala near her bed, thus contradicting
herself and Teodora Neyra and Presentacion Blanco.
Strange to say, Teodora Neyra, Presentacion Blanco and Ceferina de la Cruz also testified that
Encarnacion Neyra's thumb mark was affixed to the will, only in the morning of November 4, 1942,
by Trinidad Neyra and Ildefonso del Barrio, when Encarnacion was already dead.
The testimony of Dr. Dionisio Parulan, alleged medical expert, as to the nature and effects of
Addison's disease, is absolutely unreliable. He had never seen or talked to the testatrix Encarnacion
Neyra.
According to the medical authorities, the cause or causes of the sleeping sickness, known as
Addison's disease, are not yet fully known: that persons attacked by said decease often live as long
as ten (10) years after the first attack, while others die after a few weeks only, and that as the
disease, progresses, asthenia sets in, and from 80 per cent to 90 per cent of the patients develop
tuberculosis, and complications of the heart also appear. (Cecil, Textbook of Medicine, 3d ed., 1935,
pp. 1250, 1252, 1253; MaCrae, Osler's Modern Medicine, 3d ed., Vol. V. pp. 272-279).
And it has been conclusively shown in this case that the testatrix Encarnacion Neyra, at the age of
48, died on November 4, 1942, due to a heart attack, after an illness of about two (2) years.
In connection with testamentary capacity, in several cases, this court has considered the testimony
of witnesses, who had known and talked to the testators, more trustworthy than the testimony of
alleged medical experts.
Testamentary capacity is the capacity to comprehend the nature of the transaction in which the
testator is engaged at the time, to recollect the property to be disposed of, and the persons who
would naturally be supposed to have claims upon the testator, and to comprehend the manner in
which the instrument will distribute his property among the objects of his bounty. (Bugnao vs. Ubag.
14 Phil., 163.)

Insomnia, in spite of the testimony of two doctors who testified for the opponents to the probate of a
will, who stated that it tended to destroy mental capacity, was held not to affect the full possession of
the mental faculties deemed necessary and sufficient for its execution. (Caguioa vs. Calderon, 20
Phil., 400.) The testatrix was held to have been compos mentis, in spite of the physician's testimony
to the contrary, to the effect that she was very weak, being in the third or last stage of tuberculosis.
(Yap Tua vs. Yap Ca Kuan and Yap Ca Llu, 27 Phil., 579.) The testimony testimony of the attending
physician that the deceased was suffering from diabetes and had been in a comatose for several
days, prior to his death, was held not sufficient to establish testamentary incapacity, in view of the
positive statement of several credible witnesses that he was conscious and able to understand what
said to him and to communicate his desires. (Samson vs. Corrales Tan Quintin, 44 Phil., 573.)
Where the mind of the testator is in perfectly sound condition, neither old age, nor ill health, nor the
fact that somebody had to guide his hand in order that he might sign, is sufficient to invalidate his
will. (Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Where it appears that a few hours and also a few days after the execution of the will, the testator
intelligently and intelligibly conversed with other persons, although lying down and unable to move or
stand up unassisted, but could still effect the sale of property belonging to him, these circumstances
show that the testator was in a perfectly sound mental condition at the time of executing the will.
(Amata and Almojuela vs. Tablizo, 48 Phil., 485.)
Presentacion Blanco, in the course of her cross-examination, frankly admitted that, in the morning
and also at about 6 o'clock in the afternoon of November 3, 1942, Encarnacion Neyra talked to her
and that they understood each other clearly, thus showing that the testatrix was really of sound mind,
at the time of the signing and execution of the agreement and will in question.
It may, therefore, be reasonably concluded that the mental faculties of persons suffering from
Addison's disease, like the testatrix in this case, remain unimpaired, partly due to the fact that, on
account of the sleep they enjoy, they necessarily receive the benefit of physical and mental rest. And
that like patients suffering from tuberculosis, insomnia or diabetes, they preserve their mental
faculties until the moments of their death.
Judging by the authorities above cited, the conclusion made the trial court that the testatrix
Encarnacion Neyra was of sound mind and possessed testamentary capacity, at the time of the
execution of the will, cannot be properly disturbed.
The oppositors also claim that the attesting witnesses were not present, at the time that the testatrix
thumbed marked the will in question, on her bed, in the sala of the house, as they were allegedly in
the caida. But it has been fully shown that the attesting witnesses were present at the time of the
signing and execution of the agreement and will in question, in the sala, where the testatrix was lying
on her bed. The true test is not whether they actually saw each other, at the time of the signing of the
will, but whether they might have seen each other sign, had they chosen to do so; and the attesting
witnesses actually saw it in this case. (Jaboneta vs. Gustilo, 5 Phil., 541.) And the thumbmark placed
by the testatrix on the will is equivalent to her signature. (Yap Tua vs. Yap Ca Kuan and Yap Ca Llu,
27 Phil., 579.)
The oppositors as well as their principal witnesses are all interested parties, as said oppositors had
been named legatees in the will dated September 14, 1939, but eliminated from the will dated
November 3, 1942.

On the other hand, the witnesses for the petitioner are all trustworthy men, who had absolutely no
interest in the final outcome of this case. Two of them are ministers of the Gospel, while the three
attesting witnesses are professional men of irreproachable character, who had known and seen and
talked to the testatrix.
Furthermore, the testimony of the oppositors and their witnesses, to the effect that there could have
been no reconciliation between the two sisters, and that the thumb mark of Encarnacion Neyra was
affixed to the document embodying the agreement, while she was sleeping, on November 3, 1942,
in their presence; and that her thumb mark was affixed to the will in question, when she was already
dead, in the morning of November 4, 1942, within their view is preposterous, to say the least. Said
testimony is contrary to common sense. It violates all sense of proportion. The oppositors and their
witnesses could not have told the truth; they have testified to brazen falsehoods; and they are,
therefore, absolutely unworthy of belief. And to the evidence of the oppositors is completely
applicable the rule falsus in uno, falsus in omnibus. (Gonzales vs. Mauricio, 53 Phil., 728, 735.)
In the brief presented by counsel for the oppositors and the appellants, to show the alleged
improbability of the reconciliation of the two sisters and the execution of the will, dated November 3,
1942, they have erroneously placed great reliance on the facts that, up to October 31, 1942, the two
sisters Encarnacion and Trinidad Neyra were bitter enemies. They were banking evidently on the
common belief that the hatred of relatives is the most violent. Dreadful indeed are the feuds of
relatives, and difficult the reconciliation. But they had forgotten the fact that Encarnacion Neyra was
a religious and pious woman instructed in the ancient virtues of Christian faith and hope and charity,
and that it was godly to forgive and better still to forget.
It was most natural that there should have been reconciliation between the two sisters, Encarnacion
and Trinidad Neyra, as the latter is the nearest relative of the former, her only sister of the whole
blood. The approach of imminent death must have evoked in her the tenderest recollections of
childhood. And believing perhaps that her little triumphs had not always been fair to her sister who in
fact, had had successively instituted two suits against her, to recover what was her due, and for
which Encarnacion believed she must atone, she finally decided upon reconciliation, so that she
might depart in peace.
The record shows that, of the two, Encarnacion lived in greater opulence, and that Trinidad had been
demanding tenaciously her share; and as a Christian woman, Encarnacion must have known that no
one has any right to enrich himself unjustly, at the expense of another. And it was, therefore, natural
that Encarnacion should desire reconciliation with her sister Trinidad, and provide for her in her last
will and testament.
As for Eustaquio Mendoza, who, according to the evidence, had served Encarnacion Neyra for so
many years and so well, it was also natural that she should make some provision for him, as
gratitude is the noblest sentiment that springs from the human heart.
The conduct of Encarnacion Neyra, in making altogether a new will, with new beneficiaries named
therein, including principally her bitterest enemy of late, which is completely incompatible with the
will, dated September 14, 1939, may really seem strange and unusual; but, as it has been truly said,
above the logic of the head is the feeling in the heart, and the heart has reasons of its own which the
head cannot always understand, as in the case of intuitive knowledge of eternal verity.

As Encarnacion Neyra felt the advent of immortality, she naturally wanted to follow "the path of the
just, which is as the shining light that shineth more and more unto the perfect day," so that her
memory may be blessed. As a Christian woman, she must have loved justice, mercy and truth and to
follow the law, for this is the whole duty of man.
In the present case, the court cannot find any reason or justification to alter the conclusions set forth
in the decree appealed from. This court will not reverse any findings of fact by the trial court made
upon conflicting testimony and depending largely upon the credibility of witnesses, who testified in
the presence of the trial judge, unless the court below failed to take into consideration some material
facts or circumstances, or to weigh accurately all of the material facts and circumstances presented
to it for consideration. (Baltazar vs. Alberto, 33 Phil., 336; Melliza vs.Towle, 34 Phil., 345;
Caragay vs. Urquiza, 53 Phil., 72, 79; Garcia vs. Garcia de Bartolome, 63 Phil., 419.)
After a careful consideration of the evidence and the law of this case, we find it legally impossible to
sustain any of the errors assigned by the appellants. The judgment appealed from is, therefore,
affirmed, with costs against the appellants. So ordered.
EN BANC
[G.R. No. 47428. April 8, 1941.]
Testamentaria de la finada Perpetua Albornoz Viuda de Soriano. ALFONSO ALBORNOZ,
solicitante-apelante, contra. DOLORES ALBORNOZ y JOSE ALBORNOZ, opositores-apelados.
[G.R. No. 47429. April 8, 1941.]
DOLORES ALBORNOZ, solicitante-apelada, contra ALFONSO ALBORNOZ Y OTROS, opositoresapelantes.
Sres. Santos y Solidum y D. Emilio L. Medina, en representacion de los apelantes.
Sres. Diaz y Lazaro, en representacion de los apelados.
SYLLABUS
1. TESTAMENTOS; LEGALIZACION; CAPACIDAD MENTAL. La finada fallecio el 25 de junio de 1936, al
rededor de las 8 de la maana, en el municipio de Laoag de la Provincia de Ilocos Norte, teniendo ella
entonces 68 aos de edad. Padecio de diarrea y enteritis con complicaciones de miocarditis, desde el 3 de
junio de 1936 hasta el momento de su fallecimiento el cual no se debio mas que a dichas causas. Su
debilidad fue acentuandose de dia en dia desde poco despues de haber caido enferma, habiendo contribuido
a esto la absoluta dieta liquida a que habia sido sometida, mas su ya bastante avanzada edad. La postracion
que le sobrevino mas tarde fue tal que el 22 de los expresados mes y ao ya deliraba y apenas podia
moverse y hablar; y si hablaba, sus palabras eran entonces incoherentes. El 23 perdio completamente el
habla, y aunque tenia abiertos los ojos, ya no se movian, notandose que tampoco veian; y nada de lo que le
rodeaba le causaba ya impresion o reaccion. Continuo asi hasta sobrevenirle la muerte. En estas
circunstancias, claro esta que era fisicamente imposible que otorgase como trataron de probar los apelantes,
su alegado testamento Exhibit A en el expediente No. 4054 (C. S. -R. G. No. 47428). Hay que tener
presente que dicho documento muestra en su faz, y asi lo declararon ademas los testigos de los apelantes,
que fue preparado y firmado por la finada y por los testigos que presentaron, llamados A. Q., A. R. e 1. S. P.,
a las 6 a. m. del dia 24 de junio de 1936.

DECISION

DIAZ, M. :

Estos dos expedientes nos fueron elevados en virtud de la spelacion,de algunas de las partes interesadas
contra la sentencia del Juzgado de Primera Instancia de Ilocos Norte, por tratarse en ambos de una
legalizacion de dos alegados testamentos y codicilo en los que las propiedades de que la autora de los
mismos trata de disponer, valen mucho mas de P50,000.
En el expediente C. S. -R. G. No. 47428 fue promovente en primera instancia Alfonzo Albornoz (Expediente
No. 4054 del Juzgado de Primera Instancia de Ilocos Norte), y en el expediente C. S. -R. G. No. 47429
(Expediente No. 4017 del mismo Juzgado), la promovente fue Dolores Albornoz. Los dos son hermanos de la
hoy finada Perpetua Albornoz Vda. de Soriano que dijeron en sus respectivos casos, ser la otorgante de los
testamentos y codicilo cuya legalizacion solicitaron.
El Juzgado de Ilocos Norte que conocio de los dos expedientes, ordeno despues de los tramites de rigor, la
legalizacion de los documentos que Dolores Albornoz habia presentado como testamento y codicilo de la
mencionada finada, y son los que obran hoy en autos como Exhibits A y B (Expediente No. 4017 del Juzgado
de Primera Instancia de Ilocos Norte y C. S. -R. G. No. 47429); y rechazo el que presentara para el mismo
fin el promovente del expediente No. 4054 que corresponde al de este Tribunal C. S. -R. G. No.47428,
Alfonso Albornoz. Esto hizo el Juzgado en una sola decision, a instancia de las partes interesadas.
En el primer expediente (Expdiente No. 4017; C. S. -R. G No. 47429), fue opositor Alfonso Albornoz y con el
hicieron causa comun Amador, Alicia, Clara y los hermanos de estos excepto Jose, apellidados todos
Albornoz; y en el otro expediente, o sea, No. 4054 (C. S. -R. G. No. 47428) fueron opositores Dolores
Albornoz y Jose Albornoz.
Alfonso Albornoz y los que hicieron causa comun con el apelaron de la decision dictada por el Juzgado en
ambos expedientes; y en esta instancia arguyen ahora que aquel incurrio en los errores que apuntan en sus
alegatos, sustancialmente en estos terminos:
chanrob1es virtual 1aw library

El error de haber declarado que Perpetua Albornoz viuda de Soriano no tenia capacidad mental el 24 de
Junio de 1936, para otorgar el testamento de dicha fecha, Exhibit A, que presentaron para su legalizacion en
el expediente No. 4054 (C. S. -R. G. No. 47428).
El de haber dejado de dar credito al testimonio de los testigos instrumentales del referido testamento de 24
de Junio de 1936.
El de haber dejado de declarar, sin tener en cuenta la clausala de atestiguamiento del testamento que
alegaron ser de la finada Perpetua Albornoz viuda de Soriano, que el mismo fue otorgado debidamente; y el
de haber dejado de declarar al mismo tiempo que Dolores Albornoz y Jose Albornoz que lo impugnaron, no
presentaron pruebas concluyentes para sostener su contencion de que no era de dicha finada el indicado
testamento.
El de haber permitido la legalizacion como testamento de la finada, y como codicilo del mismo, los
documentos que como tales fueron presentados por Dolores Albornoz en el expediente No. 4017, C. S. -R.
G. No. 47429; y finalmente,
El de haber denegado la mocion que presentaron para pedir la celebracion de una nueva vista.
Los apelantes no impugnaron ni siquiera hicieron reparo alguno en cuanto a la autenticidad y debido
otorgamiento como testamento y codicilo, de los Exhibits A y B en el expediente No. 4017, C. S. -R. G. No.
47429; y Dolores Albornoz probo cumplidamente por otra parte, que la finada Perpetua A. Vda. de Soriano
otorgo los mismos el 25 de abril de 1934 y 19 de junio de 1936, respectivamente, con entera libertad,
estando ella en el pleno goce de sus facultades mentales y en presencia de los testigos cuyos nombres y
firmas se mencionan y aparecen en las clausulas de atestiguamiento de los aludidos documentos.
La finada fallecio el 25 de junio de 1936, al rededor de las 8 de la maana, en el municipio de Laoag de la
Provincia de Ilocos Norte, teniendo ella entonces 68 aos de edad. Padecio de diarrea y enteritis con
complicaciones de miocarditis desde el 3 de junio de 1936 hasta el momento de su fallecimiento el cual no
se debio mas que a dichas causas. Su debilidad fue acentuandose de dia en dia desde poco despues de
haber caido enferma, habiendo contribuido a esto la absoluta dieta liquida a que habia sido sometida, mas
su ya bastante avanzada edad. La postracion que le sobrevino mas tarde fue tal que el 22 de los expresados
mes y ao ya deliraba y apenas podia moverse y hablar; y si hablaba, sus palabras eran entonces

incoherentes. El 23 perdio completamente el habla, y aunque tenia abiertos los ojos, ya no se movian,
notandose que tampoco veian; y nada de lo que le rodeaba le causaba ya impresion o reaccion. Continuo asi
hasta sobrevenirle la muerte. En estas circunstancias, claro esta que era fisicamente imposible que otorgase
como trataron de probar los apelantes, su alegado testamento Exhibit A en el expediente No. 4054, (C. S.
-R. G. NO. 47428). Hay que tener presente que dicho documento muestra en su faz, y asi lo declararon
ademas los testigos de los apelantes, que fue preparado y firmado por la finada y por los testigos que
presentaron, llamados Antonio Quirolgico, Adriano Ruiz e Isaac S. Pedro a las 6 a. m. del dia 24 de junio de
1936.
La finada no era pobre y no carecia de medios para procurarse los servicios de domesticos y el cuidado de
parientes y amigos mas o menos interesados en su salud: no vivia sola ni se hallaba sola en su casa desde
que se enfermo, y menos en el dia mencionado, siendo esto tanto mas cierto cuanto que el mismo Alfonzo
Albornoz, declarando en la vista de los dos expedientes, manifesto que su hermana Dolores Albornoz y la
amiga de esta llamada Cunegunda Pe Benito tuvieron especial cuidado de que no la viese; y de hecho, la
finada tenia a su servicio nueve criados y nueve criadas. Si esto es cierto, es indudablemente cierto
tambien, como lo probo Dolores Albornos, que la finada nunca estuvo sin compaia en su habitacion durante
su enfermedad, especialmente, durante su.s ultimos dias, porque aquella requeria cuidado continuo. Por
consiguiente, es increible que Adriano Ruiz y los otros testigos instrumentales del alegado testamento de 24
de junio, pudiesen entrar, no ya dentro de la habitacion de la finada pero siquiera dentro de su casa, sin ser
vistos ni notados por nadie. El otorgamiento del testamento de que se trata no pudo hacerse en un corto
instante; debio requerir agun tiempo, tiempo bastante para que los de la casa pudiesen darse cuenta de que
habia extraos en la misma, en una hora en que no es costumbre visitar. Aadase a todo esto que el
experto caligrafo Arcadio Laperal que hizo un estudio detenido de las firmas "PERPETUA A. VDA. DE
SORIANO que aparecen en el Exhibit A obrante en el expediente No. 4054, que es el mismo Exhibit 1 que
obra en el expediente No 4017, comparando las mismas con las autenticas de la finada y las que aparecen
en el testamento y en el codicilo legalizados por el Juzgado a quo, que no fueron discutidas, expreso la
opinion de que unas y otras no pudieron haberse escrito por una misma persona, ayudada o no por otra
porque difieren en todos los respectos. Creemos que la opinion del mencionado experto esta fundada en los
hechos, sobre todo teniendo en cuenta que la finada ya no podia ver bien, como asi lo dijo uno de los
testigos del testamento que se discute, y sin embargo, las firmas que se le atribuyen estan escritas con
mucha simetria, rectamente, y guardando las letras entre si, casi la misma distancia. Aunque la finada
hubiese sido ayudada por otro para estampar dichas firmas, no hubieran salido tan bien como aparecen en
el expresado documento.
La mocion para una nueva vista que los apelantes presentaron y fue denegada por el Juzgado a quo, no
aleganingun nuevo hecho. La presentaron simplemente proforma, para que puedan revisarse los hechos.
Por todo lo expuesto, y siendo manifiestamente infundados los errores atribuidos por los apelantes al
Juzgado a quo, por la presente, confirmamos en todas sus partes la decision apelada, con las costas a
dichos apelantes, en ambas instancias. Asi se orden.

ARTICLE 800

EN BANC
[G.R. No. 24569. February 26, 1926. ]
MANUEL TORRES, petitioner and appellant, and LUZ LOPEZ DE BUENO, appellant, v. MARGARITA
LOPEZ, Opponent-Appellee.
Araneta & Zaragoza for Appellants.
Marcaida, Capili & Ocampo and Thomas Cary Welch for Appellee.
SYLLABUS

1. WILLS; TESTAMENTARY CAPACITY; DEFINITION. Testamentary capacity is the capacity to comprehend

the nature of the transaction in which the testator is engaged at the time, to recollect the property to be
disposed of and the persons who would naturally be supposed to have claims upon the testator, and to
comprehend the manner in which the instrument will distribute his property among the objects of his
bounty. (Bugnao v. Ubag [1909], 14 Phil., 163; Bagtas v. Paguio t1912], 22 Phil., 227; and Jocson v. Jocson
[1922], 46 Phil., 701.)
2. ID; ID.; TIME AS OF WHICH CAPACITY TO BE DETERMINED. The mental capacity of the testator is
determined as of the date of the execution of his will.
3. ID.; ID.; TESTS OF CAPACITY. Neither old age, physical infirmities, feebleness of mind, weakness of
the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to show
testamentary incapacity. The nature and rationality of the will is of some practical utility in determining
capacity. Each case rests on its own facts and must be decided by its own facts.
4. ID.; ID.; EVIDENCE. On the issue of testamentary capacity, the evidence should be permitted to take a
wide range in order that all facts may be brought out which will assist in determining the question. The
testimony of subscribing witnesses to a will concerning the testators mental condition is entitled to great
weight where they are truthful and intelligent. The evidence of those present at the execution of the will and
of the attending physician is also to be relied upon.
5. ID.; ID.; PRESUMPTIONS. The presumption is that every adult is sane. But where the question of
insanity is put in issue in guardianship proceedings, and a guardian is named for the person alleged to be
incapacitated, a presumption of the mental infirmity of the ward is created; the burden of proving sanity in
such case is cast upon the proponents of the will.
6. ID.; ID.; EFFECT OF APPOINTMENT OF GUARDIAN. The effect of an order naming a guardian for an
incapacitated person is not conclusive with respect to the condition of the person, pursuant to the provisions
of section 306 of the Code of Civil Procedure. The decree does not conclusively show that the testamentary
capacity of a person under guardianship is entirely destroyed. The presumption created by the appointment
of a guardian may be overcome by evidence proving that such person at the time he executed a will was in
fact of sound and disposing mind and memory.
7. ID.; ID.; MEDICAL JURISPRUDENCE; INSANITY. A will to be valid must, under sections 614 and 634 of
the Code of Civil Procedure, be made by a testator of sound mind. The question of mental capacity is one of
degree. There are many gradations from the highest degree of mental soundness to the lowest conditions of
diseased mentality which are denominated as insanity and idiocy. (Bagtas v. Paguio [1912], 22 Phil., 227,
and Bugnao v. Ubag [1909], 14 Phil., 163.)
8. ID.; ID.; ID.; ID. To constitute a sound and disposing mind, it is not necessary that the mind shall be
wholly unbroken, unimpaired, or unshattered by disease or otherwise, or that the testator should be in the
full possession of his reasoning faculties. The question is not so much, what was the degree of memory
possessed by the testator, as, had he a disposing memory? (Buswell on Insanity, sec. 365; Campbell v.
Campbell [1889], 130 Ill., 466, and Bagtas v. Paguio [1912], 22 Phil., 227.)
9. ID.; ID.; ID.; ID.; "SENILE DEMENTIA." Senile dementia is childishness. In the first stages of the
disease, a person may possess reason and have will power.
10. ID.; ID.; ID.; ID.; PHILIPPINE CASES ON TESTAMENTARY CAPACITY EXAMINED. An examination of
the Philippine cases on testamentary capacity discloses a consistent tendency to protect the wishes of the
deceased whenever it be legally possible. These decisions also show great tenderness on the part of the
court towards the last will and testament of the aged.
11. ID.; ID.; ID.; ID.; CASE AT BAR. On January 3, 1924, when the testator, Tomas Rodriguez, made his
will, he was 76 years old, physically decrepit, weak of intellect, suffering from a loss of memory, had a
guardian of his person and his property, and was eccentric, but he still possessed that spark of reason and of
life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that
intention, which the law terms "testamentary capacity." Two of the subscribing witnesses testified clearly to
the regular manner in which the will was executed, and one did not. The attending physician and three other
doctors who were present at the execution of the will expressed opinions entirely favorable to the capacity of
the testator. Three other members of the medical profession expressed opinions entirely unfavorable to the
capacity of the testator and certified that he was of unsound mind. Held, That Tomas Rodriguez on January

3, 1924, possessed sufficient mentality to make a will which would meet the legal test regarding
testamentary capacity; that the proponents of the will have carried successfully the burden of proof and
have shown him of sound mind on that date; and that it was reversible error on the part of the trial court
not to admit his will to probate.
12. ID.; UNDUE INFLUENCE; DEFINITION. Undue influence as used in connection with the law of wills,
may be defined as that which compels the testator to do that which is against the will from fear, the desire
of peace, or from other feeling which he is unable to resist.
13. ID.; ID.; ID.; CASE AT BAR. Field, That the theory that undue influence was exercised by the persons
benefited in the will in conjunction with others who acted in their behalf, and that there was a preconceived
plan on the part of the persons who surrounded Tomas Rodriguez to secure his signature to the testament,
must be rejected as not proved.

DECISION

MALCOLM, J. :

This case concerns the probate of the alleged will of the late Tomas Rodriguez y Lopez.
Tomas Rodriguez died in the City of Manila, Philippine Islands, on February 25, 1924, leaving a considerable
estate. Shortly thereafter, Manuel Torres, one of the executors named in the will, asked that the will of
Rodriguez be allowed. Opposition was entered by Margarita Lopez, the first cousin of the deceased, on the
grounds: (1) That the testator lacked mental capacity because at the time of the execution of the supposed
will he was suffering from senile dementia and was under guardianship; (2) that undue influence had been
exercised by the persons benefited in the document in conjunction with others who acted in their behalf;
and (3) that the signature of Tomas Rodriguez to the document was obtained through fraud and deceit. After
a prolonged trial, judgment was rendered denying the legalization of the will. In the decision of the trial
judge appeared, among others, these findings:
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"All this evidence taken together with the circumstance that before, and at, the time Tomas Rodriguez was
caused to sign the supposed will, Exhibit A, and the copies thereof, there already existed a final judgment as
to his mental condition, wherein he was declared physically and mentally incapacitated to take care of
himself and manage his estate, shows in a clear and conclusive manner that at the time of signing the
supposed will, Tomas Rodriguez did not possess such mental capacity as was necessary to enable him to
dispose of his property by the supposed will.
"But even supposing, as contended by petitioners counsel, that Tomas Rodriguez was at the time of
executing the will, competent to make a will, the court is of the opinion that the will cannot be probated, for
it appears from the declaration of the attesting witness Elias Bonoan that when the legatee Luz Lopez
presented the supposed will, Exhibit A, to Tomas Rodriguez, she told him to sign said Exhibit A because it
was a document relative to the complaint against one Castito, which is Exhibit 4, then pending in the justice
of the peace court, and for the further reason that said Tomas Rodriguez was then under guardianship, due
to his being mentally and physically incapacitated, and therefore unable to manage his property and take
care of himself. It must also be taken into account that Tomas Rodriguez was an old man 76 years of age,
and was sick in the hospital when his signature to the supposed will was obtained. All of this shows that the
signature of Tomas Rodriguez appearing in the will was obtained through fraudulent and deceitful
representations of those who were interested in it." (Record on Appeal, p. 23.)
From the decision and judgment above-mentioned, the proponents have appealed. Two errors are specified,
viz: (1) The court below erred in holding that at the time of signing his will, Tomas Rodriguez did not
possess the mental capacity necessary to make the same; and (2) the court below erred in holding that the
signatures of Tomas Rodriguez to the will were obtained through fraudulent and deceitful representations,
made by persons interested in the execution of said will.
The record is voluminous close to two thousand type-written pages, with a varied assortment of exhibits.
One brief contains two hundred seventy-four pages, the other four hundred fifteen pages. The usual oral
argument has been had. The court must scale this mountain of evidence more or less relevant and of

argument intense and prolific to discover the fertile valleys of fact and principle.
The topics suggested by the assignments of error Testamentary Capacity and Undue Influence will be
taken up separately and in order. An attempt will be made under each subject, first, to make findings of fact
quite separate and apart from those of the trial judge, and, second. to make findings of law. Finally, it is
proposed to consolidate the facts and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
A. Facts. For a long time prior to October, 1923, Tomas Rodriguez was in feeble health. His breakdown
was undoubtedly due to organic weakness, to advancing years, and to an accident which occurred in 1921
(Exhibit 6). Ultimately, on August 10, 1923, on his own initiative, Rodriguez designated Vicente F. Lopez as
the administrator of his property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of First Instance of Manila to name a guardian
for Tomas Rodriguez because of his old age and pathological state. This petition was opposed by Attorney
Gregorio Araneta acting on behalf of Tomas Rodriguez for the reason that while Rodriguez was far from
strong on account of his years, he was yet capable of looking after his property with the assistance of his
administrator, Vicente F. Lopez. The deposition of Tomas Rodriguez was taken and a perusal of the same
shows that he was able to answer nearly all of the questions propounded intelligently (Exhibit 54-G). A trial
was had at which considerable oral testimony for the petitioner was received. At the conclusion of the
hearing, an order was issued by the presiding judge, declaring Tomas Rodriguez incapacitated to take care
of himself and to manage his property, and naming Vicente F. Lopez as his guardian. (Exhibit 37.)
Inasmuch as counsel for the appellee make much of one incident which occurred in connection with the
guardianship proceedings, it may as well be mentioned here as later. This episode concerns the effort of
deputy sheriff Joaquin Garcia to make service on Tomas Rodriguez on October 31, 1923. We will let the
witness tell in his own words what happened on the occasion in question:
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"I found him lying down on his bed . . . And when it (the cleaning of his bed) was finished, I again entered
his room and told him that I had an order of the court which I wanted to read as I did read to him, but after
reading the order he asked me what the order meant; I read it to you so that you may appear before the
court, because you have to appear before the court I do not understand, then I read it again, but he
asked what the order said; in view of that fact I left the order and departed from the house." (S. R., p.
642.)
To return to our narrative possibly inspired by the latter portion of the order of Judge Diaz, Tomas Rodriguez
was taken to the Philippine General Hospital on November 27, 1923. There he was to remain sick in bed
until his death. The physician in charge during this period was Dr. Elias Domingo. In the clinical case record
of the hospital under the topic "Diagnosis (in full)," we find the following: "Senility; Hernia inguinal;
Decubitus" (Exhibit 8).
On the door of the patients room was placed a placard reading "No visitors, except father, mother,
sisters, and brothers." (Testimony of head nurse Carmen Baldonado, S. R., p. 638.) By order of the
attending physician, there were permitted to visit the patient only the following named persons: Santiago
Lopez, Manuel Ramirez, Romana Lopez, Luz Lopez de Bueno, Remedios Lopez, Benita Lopez, Trinidad
Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio Araneta (Exhibit 9). The list did not include the
names of Margarita Lopez and her husband Antonio Ventura. Indeed the last named persons experienced
considerable difficulty in penetrating into the room of Rodriguez.
Santiago Lopez states that on one occasion when he was visiting Tomas Rodriguez in the hospital, Rodriguez
expressed to him a desire to make a will and suggested that the matter be taken up with Vicente F. Lopez
(S. R., p. 550). This information Santiago Lopez communicated to Vicente F. Lopez, who then interviewed
Maximino Mina, a practicing attorney in the City of Manila, for the purpose of securing him to prepare the
will. In accordance with this request, Judge Mina conferred with Tomas Rodriguez in the hospital on
December 16th and December 29th. He ascertained the wishes of Rodriguez and wrote up a testament in
rough draft. The attorney expected to return to the hospital on December 31st to have the will executed but
was unable to do so on account of having to make a trip to the provinces. Accordingly, the papers were left
with Santiago Lopez.
In corroboration of the above statements, we transcribe a portion of Judge Minas testimony which has not
been challenged in any way:
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"ARANETA:

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Q. Will you please tell your motive for holding an interview with Vicente Lopez?
"MAXIMINO MINA:

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"A. When I arrived in the house of Vicente Lopez, after the usual greetings and other unimportant things, he
consulted me or presented the question as to whether or not D. Tomas could make his will, having
announced his desire to do so. I told him that it seemed that we were not called upon to decide or give an
opinion as to whether or not he can make a will; it is a question to be submitted to the court, but as he had
announced his desire, it is our duty to comply with it. Then he requested me to do what was necessary to
comply with his wishes; I told him I was to see him; then we agreed that on the morning next to the
following evening, that is, on the 16th, I should go to the General Hospital, and so I did.
"Q. Did you go to the hospital in the evening of the 16th?
"A. Yes, sir.
"Q. Did you meet D. Tomas.? A. Yes, sir.
"Q. Did D. Tomas tell you his desire to make a will?
"OCAMPO: Leading.
"ARANETA: I withdraw. What, if anything, did D. Tomas tell you on that occasion when you saw him there?
"A. He told me that.
"Q. Please tell us what conversation you had with D. Tomas Rodriguez?
"A. The conversation I had with him that evening according to my best recollection I cannot tell the
exact words and perhaps the order. After the usual greetings, Good evening, D. Tomas, Good evening,
How are you, How do you do? Very well, just as you find me. Then I introduced myself saying, I came
here in the name of D. Vicente Lopez, because according to him you stated your desire to make a will. Yes,
he said, and where is Vicente Lopez, why does he not come. He cannot come because he has many things
to do, and besides it is hard for him and makes him tired, so he told me to come. Then he asked me, Who
are you? I am Maximino Mina, your tenant, attorney. Are you an attorney? Yes. Where do you live? I
live in Quiapo. Oh, in Quiapo, a good district, it is gay, a commercial place, you must have some business
there because that is a commercial place. Unfortunately, I have none, D. Tomas. Well, you must have
because the profession alone does not give enough. Where is your office? I work in the office of Mr.
Chicote. That-Mr. Chicote must be rich, it seems to me that he is. The profession gives almost nothing, it is
better to have properties. I am an attorney but do not depend upon my profession. I interrupted D. Tomas
saying, since you want to make a will, when and to whom do you want to leave your fortune? Then he said,
To whom else? To my cousin Vicente Lopez and his daughter Luz Lopez. Which properties do you want to
give to your cousin and niece? All my properties. Wont you specify the property to be given to each of
them? What for?, all my property. Dont you have any other relatives? Yes, sir, I have. Wont you give
any to those relatives? What for?, was his answer.Well do you want to specify said properties, to say what
they are? and he again said, What for?, they know them, he is my attorney-in-fact as to all my property. I
also said, Well and as a legacy, wont you give anything to other persons? The answer, I think, something,
they will know it. After being asked, Whom do you think, whom do you want to be your executor? After
hesitating a little, This Torres, Manuel or Santiago Lopez also. Then I asked him, What is your religion? He
answered, Roman Apostolic Catholic, and then he also asked me, And yours? Also Roman Apostolic
Catholic. Where have you studied? In the University of Santo Tomas. It is convenient to preserve the
Catholic religion that our ascendants have left us. And you, what did you study in the university, he asked.
I said, Do you have anything more to say as to your testamentary dispositions? No, he answered. Then I
reminded him, You know that Vicente Lopez has sent me to get these dispositions of yours, and he said,
Yes, do it. I asked him, When do you want it done? Later on, I will send for you. After this, believing to
have done my duty, I bade him good-bye.
"Q. Did you have any other occasion to see him?

"A. Yes.
"Q. When?
"A. On December 29, 1923, also in the evening.
"Q. Why did you go to see him?
"A. Because as I had not received any message either from Vicente Lopez or from Tomas Rodriguez, and as I
had received notices in connection with the few cases I had in the provinces, particularly in Tayabas, which
compelled me to be absent from Manila until January 1st at least, for I might be there for several days, so I
went to the General Hospital of my own accord since I had not received any message from them with a
rough draft which I had prepared in accordance with what he had told me in our conversation. After the
greetings, I told him, Here I am, D. Tomas; this is the rough draft of your will in accordance with your
former statements to me in order to submit it to you. Do you want to read it? Please do me the favor of
reading it. I read it slowly to him in order that he could understand it. After reading, It is all right, that is
the way, few words you see it takes only a few minutes; now I can execute the will. We can do it, it
takes only a few minutes. In view of that statement of his, I called his attention, But we dont have
witnesses, D. Tomas. I looked out through the door to see if I could call some witnesses, but it was late then
and it was thought better to do it on the 31st of December, and so I told D. Tomas that I would be coming
on the 31st of December. Then we talked about other things, and he -again asked, Where were you born? I
told him in Quiapo.Ah, good district, and especially now that the fiesta of Quiapo is coming near, and then I
interrupted him, Yes, the fiestas of the Holy Child and of Our Lady of Mount Carmel because we also talked
about the fiesta of San Sebastian. I again reminded him that we could not do it because the witnesses were
not there and he explained, Good Christmas present, isnt it? I did not tell him anything, and in view of that
I did not deem it necessary to stay there any longer.
"Q. With whom did you make the arrangement to make the will on the evening of the 31st of December
you said that it was agreed that the will be executed on the evening of December 31st?
"A. With Santiago Lopez and Don Tomas.
"Q. Was the will executed on the 31st of December?
"A. What happened is this: In view of that agreement, I fixed up the rough draft which I had, dating it the
31st of December, putting everything in order; we agreed that Santiago Lopez would meet me on said 31st
day between five and six in the evening or a little before, but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not trouble about going to the General Hospital because it
could not be carried out for the reason that certain requisites were lacking. In view of this and bearing
always in mind that on the following day I had to go to the provinces, I told Santiago Lopez that I would
leave the papers with him because I might go to the provinces.
"Q. What may be the meaning of those words good Christmas present?
"A. They are given as a Christmas present when Christmas comes or on the occasion of Christmas.
"Q. I show you this document which is marked Exhibit A, tell me if that is the will or copy of the will which
you delivered to Santiago Lopez on December 31, 1923?
"A. With the exception of the words 3 de enero de 1924 it seems to be literally identical." (S. R., pp. 244249.)
As the witness stated, the will which was prepared by him is identical with that signed by the testator and
the attesting witnesses with the single exception of the change of the date from December 31, 1923, to
January 3, 1924. Two copies besides the original of the will were made. The will is brief and simple in
terminology.
For purposes of record, we copy the will as here translated into English:

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"ONLY PAGE
"In the City of Manila, Philippine Islands, this January 3, 1924, I, Tomas Rodriguez, of age and resident of

the City of Manila, Philippine Islands, do freely and voluntarily make this my will and testament in the
Spanish language which I know, with the following clauses:
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"First. I declare that I am a Roman Apostolic Catholic, and order that my body be buried in accordance with
my religion, standing, and circumstances.
"Second. I name my cousin Vicente F. Lopez and his daughter Luz Lopez de Bueno as my only and universal
heirs of all my property.
"Third. I appoint D. Manuel Torres and D. Santiago Lopez as my executors.
"In witness whereof I sign this typewritten will, consisting of one single page, in the presence of the
witnesses who sign below.
(Sgd.) "TOMAS RODRIGUEZ
(Left marginal signatures:)
"TOMAS RODRIGUEZ
"ELIAS BONOAN
"V L. LEGARDA
"A. DE ASIS"
"We hereby certify that on the date and in the place above indicated, Don Tomas Rodriguez executed this
will, consisting of one single typewritten page, having signed at the bottom of the will in the presence of us
who saw as witnesses the execution of this will, and we signed at the bottom thereof in the presence of the
testator and of each other.
(Sgd.) "V. L. LEGARDA
"ELIAS BONOAN
"A. DE ASIS"
(Exhibit A.)
On the afternoon of January 3, 1924, there gathered in the quarters of Tomas Rodriguez in the Philippine
General Hospital, Santiago Lopez, his relative; Mr. V. L. Legarda, Dr. Elias Bonoan, and Dr, A. de Asis,
attesting witnesses; and Dr. Fernando Calderon, Dr. Elias Domingo, and Dr. Florentino Herrera, physicians,
there for purposes of observation. (Testimony of Elias Bonoan, S. R., p. 8; testimony of V. L. Legarda, S. R.,
p. 34.) Possibly also Mrs. Luz Lopez de Bueno and Mrs. Nena Lopez were present; at least they were
hovering in the background.
As to what actually happened, we have in the record two absolutely contradictory accounts. One emanates
from the attesting witness, Doctor Bonoan. The other is the united testimony of all the remaining persons
who were there.
Doctor Elias Bonoan was the first witness called at the trial. He testified on direct examination as to formal
matters, such as the identification of the signatures to the will. On cross-examination, he rather startled the
proponents of the will by stating that Luz Lopez de Bueno told Tomas Rodriguez to sign the document
because it concerned a complaint against Castito and that nobody read the will to the testator. Doctor
Bonoans testimony along this line is as follows:
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"QUESTIONS.
"MARCAIDA:

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"Q. Why were you a witness to the will of Tomas Rodriguez?

"ARANETA:

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I object to the question as being immaterial.

"COURT:

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Objection overruled.
"ARANETA:

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Exception.
"Dr. BONOAN:

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"A. Because I was called up by Mrs. Luz by telephone telling me to be in the hospital at 3 oclock sharp in
the afternoon of the 3d of January.
"Q. Who is that Luz whom you have mentioned?
"A. Luz Lopez, daughter of Vicente Lopez.
"Q. What day, January 3, 1924?
"A. Yes, sir.
"Q. When did Luz Lopez talk to you in connection with your going to the hospital?
"A. On the morning of the 3d she called me up by telephone.
"Q. On the morning?
"A. On the morning.
"Q. Before January 3, 1924, when the will of Tomas Rodriguez was signed, did Luz Lopez talk to you?
"A. Yes, sir.
"Q. How many days approximately before was it?
"A. I cannot tell the day, it was approximately one week before, on that occasion when I was called up by
her about the deceased Vicente Lopez.
"Q. What did she tell you when you went to the house of Vicente Lopez one week approximately before
signing the will?
"A. That Tomas Rodriguez would make a will.
"Q. Dont you know where the will of Tomas Rodriguez was made?
"A. In the General Hospital.
"Q. Was that document written in the hospital.?
"A. I have not seen it.
"Q. When you went to the General Hospital on January 3, 1924, who were the persons you met in the room
where the patient was?
"A. I met one of the nieces of the deceased Tomas Rodriguez, Mrs. Nena Lopez, and Da. Luz Lopez.
"Q. Were those the only persons?

"A. Yes, sir.

"Q. What time approximately did you go to the General Hospital on January 3d?
"A. A quarter to 3.
"Q. After you, who came?
"A. Antonino de Asis, Doctor Herrera, later on Doctor Calderon arrived with Doctor Elias Domingo, and lastly
Santiago Lopez came and then Mr. Legarda.
"Q. When you entered the room of the patient, D. Tomas Rodriguez, in the General Hospital in what position
did you find him?
"A. He was Lying down.
"Q. Did you greet D. Tomas Rodriguez?
"A. I did.
"Q. Did D. Tomas Rodriguez answer you?
"A. Da. Nena immediately answered in advance and introduced me to him saying that I was the brother of
his godson.
"Q. Did other persons whom you have mentioned, viz, Messrs. Calderon, Herrera, Domingo, De Asis, and
Legarda, greet Tomas Rodriguez?
"ARANETA:

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I object to the question as being improper cross-examination. It has not been the subject of the direct
examination.
"COURT:

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Objection overruled.
"ARANETA:

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Exception.
"A. No, sir, they joined us.
"Q. What was D. Tomas told when he signed the will?
"A. To sign it.
"Q. Who told D. Tomas to sign the Will?
"A. Luz Lopez.
"Q. What did Luz Lopez tell Tomas Rodriguez in order that he should sign the Will?
"A. She told him to sign the document; the deceased Tomas Rodriguez before signing the document asked
what that was which he was to sign.
"Q. What did anybody answer to that question of D. Tomas?
"A. Luz Lopez told him to sign it because it concerned a complaint against Castito. D. Tomas said, What is
this? And Luz Lopez answered, You sign this document, uncle Tomas, because this is about the complaint
against Castito.

"Q. Then Tomas Rodriguez signed the will?

"A. Yes, sir.
"Q. Who had the will? Who was holding it?
"A. Mr. Vicente Legarda had it in his own hands.
"Q. Was the will signed by Tomas Rodriguez lying down, on his feet, or seated?
"A. Lying down.
"Q. Was the will read by Tomas Rodriguez or any person present at the time of signing the will, did they read
it to him?
"A. Nobody read the will to him.
"Q. Did not D. Tomas read the will?
"A. I have not seen it.
"Q. Were you present?
"A. Yes, sir." (S. R., p. 8.) As it would be quite impracticable to transcribe the testimony of all the others who
attended the making of the will, we will let Vicente L. Legarda, who appears to have assumed the leading
role, tell what transpired. He testified in part:
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"ARANETA:

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Q. Who exhibited to you those documents, Exhibits A, A-1, and A-2?

LEGARDA:

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"A. Santiago Lopez.

"Q. Did he show you the same document?
"A. First, that is to say the first document he presented to me was a rough draft, a tentative will, and it was
dated December 31st, and I called his attention to the fact that the date was not December 31, 1923, and
that it was necessary to change the date to January 3, 1924, and it was done.
"Q. And it was then, was it not, when Exhibits A, A-1, and A-2 were written?
"A. Yes, sir.
"Q. Do you know where it was written?
"A. In the General Hospital.
"Q. Did any time elapse from your making the suggestion that the document which you delivered to
Santiago Lopez be rewritten until those three exhibits A, A-1, and A-2 were presented to you?
"A. About nine or ten minutes approximately.
"Q. The time to make it clean.?
"A. Yes, sir.
"Q. Where were you during that time?
"A. In the room of D. Tomas Rodriguez.

"Q. Were you talking with him during that time?

"A. Yes, sir.
"Q. About what things were you talking with him?
"A. He was asking me about my health, that of my family, how my family was, my girl, whether we were
living in Pasay, he asked me about the steamer Ildefonso, he said that it was a pity that it had been lost
because he knew that my father-in-law was the owner of the steamer Ildefonso.
x

"Q. When those documents, Exhibits A, A-1, and A-2, that is, the original and the two copies of the will
signed by D. Tomas Rodriguez were written clean, will you please tell what happened?
"A. When Santiago Lopez gave them to me clean, I approached D. Tomas Rodriguez and told him: Don
Tomas, here is this will which is ready for your signature
"Q. What did D. Tomas do when you said that his will you were showing to him was ready?
"A. The first thing he asked was: the witnesses? Then I called the witnesses Gentlemen, please come
forward, and they came forward, and I handed the documents to D. Tomas. D. Tomas got up and then took
his eyeglasses, put them on and as he saw that the electric lamp at the center was not sufficiently clear, he
said: There is no more light; then somebody came forward bringing an electric lamp.
"Q. What did D, Tomas do when that electric lamp was put in place?.
"A. The eyeglasses were adjusted again and then he began to read, and as he could not read much for a
long time, for he unexpectedly felt tired and took off the eyeglasses, and as I saw that the poor man was
tired, I suggested that it be read to him and he stopped reading and I read the will to him.
"Q. What happened after you had read it to him?
"A. He said to me, Well, it is all right. It is my wish and my will. Dont you have any pen? I asked a pen of
those who were there and handed it to D. Tomas.
"Q. Is it true that Tomas Rodriguez asked at that time What is that which I am going to sign? and Luz
Lopez told him: It is in connection with the complaint against Castito?
"A. It is not true, no, sir.
"Q. During the signing of the will, did you hear Luz Lopez say anything to Tomas Rodriguez?
"A. No, sir, she said nothing.
"Q. According to you, Tomas Rodriguez signed of his own accord?
"A. Yes, sir.
"Q. Did nobody tell him to sign?
"A. Nobody.
"Q. What happened after the signing of the will by Tomas Rodriguez?
"A. I called the witnesses and we signed in the presence of each other and of Tomas Rodriguez.
"Q. After the signing of the will, did you have any conversation with Tomas Rodriguez?
"A. Doctor Calderon asked D. Tomas Rodriguez some questions.

"Q. Do you remember the questions and the conversation held between Doctor Calderon and D. Tomas after
the signing of the will?
"A. I remember that afterwards Doctor Calderon talked to him about business. He asked him how the
business was going on, everything is going wrong, except the business of making loans at 18 per cent. It
seems that Tomas Rodriguez answered: That loan at 18 per cent is illegal, it is usury." (S. R., p. 38.)
In addition to the statements under oath made by Mr. Legarda, an architect and engineer in the Bureau of
Public Works and professor of engineering and architecture in the University of Santo Tomas, suffice it to say
that Luz Lopez de Bueno denied categorically the statements attributed to her by Doctor Bonoan (S. R., p.
568). In this stand, she is corroborated by Doctor De Asis, an attesting witness, and by Doctors Calderon,
Domingo, and Herrera, the at- tending physicians. On this point, Doctor Calderon, the Director of the
Philippine General Hospital and Dean of the College of Medicine in the University of the Philippines,
testified:
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"Mr. ARANETA:

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"Q. What have you seen or heard with regard to the execution of the will?
"Dr. CALDERON:

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"A. Mr. Legarda handed the will to D Tomas Rodriguez. D. Tomas asked for his eyeglasses, wanted to read,
and it was extremely hard for him to do so. Mr. Legarda offered to read the will, it was read to him and he
heard that in that will Vicente Lopez and Luz Lopez were appointed heirs; we also saw him sign that will, and
he signed not only the original but also the other copies of the will and we also saw how the witnesses
signed the will; we heard that D. Tomas asked for light at that moment; he was at that time in a perfect
mental state. And we remained there after the will was executed. I asked him, How do you feel, how are
you? Well, I am well, he answered.How is the business? There is a crisis, but there is one good business,
namely, that of making loans at the rate of 18 per cent, and he answered, That is usury. When a man
answers in that way, That is usury, it shows that he is all right.
"Q. Were you present when Mr. Legarda handed the will to him?
"A. Yes, sir.
"Q. Did any person there tell Don Tomas that that was a complaint to be filed against one Castito?
"A. No, sir, I have not heard anything of the kind.
"Q. It was said here that when the will was handed to him, D. Tomas Rodriguez asked what that was which
he was to sign and that Luz Lopez answered, That is but a complaint in connection with Castito. Is that
true?
"A. I have not heard anything of the kind.
"Q. Had anybody told that to the deceased, would you have heard it?
"A. Yes, sir.
"Q. Was Luz Lopez there?
"A. I dont remember having seen her; I am not sure; D, Santiago Lopez and the three witnesses were
there; I dont remember that Luz Lopez was there.
"Q. Had anybody told that to the deceased, would you have heard it?
"A. Yes, sir.
"Q. Did D. Tomas sign of his own accord?
"A. Yes, sir.

"Q. Do you remember whether he was given a pen or he himself asked for it?
"A. I dont know; it is a detail which I dont remember well; so that whether or not he was given a pen or he
himself asked for it, I do not remember.
"Q. But did he sign without hesitation?
"A. With no hesitation.
"Q. Did he sign without anybody having indicated to him where he was to-sign?
"A. Yes, without anybody having indicated it to him.
"Q. Do you know whether D. Tomas Rodriguez asked for more light before signing?
"A. He asked for more light, as I have said before.
"Q. Do you remember that detail?
"A. Yes, sir, they first lighted the lamps, but as the light was not sufficient, he asked for more light.
"Q. Do you remember very well that he asked for light?
"A. Yes, sir." (S. R., p. 93.)
A clear preponderance of the evidence exists in favor of the testimony of Vicente Legarda, corroborated as it
is by other witnesses of the highest standing in the community. The only explanation we can over relative to
the testimony of Doctor Bonoan. is that possibly he may have arrived earlier than the others with the
exception of Luz Lopez de Bueno, and that Luz Lopez de Bueno may have made some sort of an effort to
influence Tomas Rodriguez. There is, however, no possible explanation of the statement of Doctor Bonoan to
the effect that no one read the will to Rodriguez, when at least five other persons recollect that Vicente
Legarda read it to him and recall the details connected with the reading.
There is one curious occurrence which transpired shortly after the making of the will which should here be
mentioned. It is that on January 7, 1923 (1924), Luz Lopez de Bueno signed a document in favor of Doctor
Bonoan in the amount of one thousand pesos (P1,000). This paper reads as follows:
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"Be it known by these presents:

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"That I, Luz Lopez de Bueno, in consideration of the services which at my instance were, and will when
necessary be, rendered by Dr. Elias Bonoan in connection with the execution of the will oF my uncle, Don
Tomas Rodriguez, and the due probate thereof, do hereby agree to pay said doctor, by way of remuneratory
donation, the sum of one thousand pesos (P1,000), Philippine currency, as soon as said services shall have
been fully rendered and I shall be in possession of the inheritance which in said will is given to me.
"In witness whereof, I sign this document which was freely and spontaneously executed by me in Manila,
this January 7, 1923.
(Sgd.) "LUZ LOPEZ DE BUENO"
(Exhibit 1)
There is a sharp conflict of testimony, as is natural, between Doctor Bonoan and Luz Lopez de Bueno relative
to the execution of the above document. We shall not attempt to settle these differences, as in the final
analysis it will not affect the decision one way or the other. The most reasonable supposition is that Luz
Lopez de Bueno imprudently endeavored to bring over Doctor Bonoan to her side of the case by signing and
giving to him Exhibit 1. But the event cannot easily be explained away.
Tomas Rodriguez passed away in the Philippine General Hospital, as we have said, on February 25, 1924.
But even prior to his demise, the two factions in the Lopez family had prepared themselves for a fight over

the estate. The Luz Lopez faction had secured the services of Doctor Domingo, the physician in charge of the
Department of Insane of the San Lazaro Hospital and Assistant Professor of Nervous and Mental Diseases in
the University of the Philippines, as attending physician; had associated with him for purposes of
investigation Dr. Fernando Calderon, the Director of the Philippine General Hospital, and Dr. Florentino
Herrera, a physician in active practice in the City of Manila; and had arranged to have two members of the
medical fraternity, Doctors De Asis and Bonoan, as attesting witnesses. The Margarita Lopez faction had
taken equal precautions by calling as witnesses in the guardianship proceedings Dr. Sixto de los Angeles,
Professor and Chief of the Department of Legal Medicine in the University of the Philippines, and Dr. Samuel
Tietze, with long experience in mental diseases; thereafter by continuing Doctors De los Angeles and Tietze
to examine Tomas Rodriguez, and by associating with them Dr. William Burke, a well-known physician of the
City of Manila. Skilled lawyers were available to aid and abet the medical experts. Out of such situations, do
will contests arise.
An examination of the certificates made by the two sets of physicians and of their oral testimony shows that
on most facts they concur. Their deductions from these facts disclose a substantial divergence of opinion. It
is a hopeless task to try to reconcile the views of these distinguished gentlemen who honestly arrived at
definite but contradictory conclusions. The best that we can do under the circumstances is to set forth the
findings of the Calderon committee on the one hand and of the De los Angeles committee on the other.
Doctors Calderon, Domingo, and Herrera examined Tomas Rodriguez individually and jointly before the date
when the will was executed. All of them, as we have noticed, were present at the signing of the will to note
the reactions of the testator. On the same day that the will was accomplished, the three doctors signed the
following certificate:
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"The undersigned, Drs. of Medicine, with offices in the City of Manila, and engaged in the practice of their
profession, do hereby certify:
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"That they have jointly examined Mr. Tomas Rodriguez, confined in the General Hospital, floor No. 3, room
No. 361, on three different occasions and on different days, and have found that said patient is suffering
from anaemia, hernia inguinal, chronic dyspepsia, and senility.
"As to his mental state, the result of the different tests to which this patient was submitted is that his
intellectual faculties are sound, except that his memory is weak, which is almost a loss for recent facts, or
events which have recently occurred, due to his physical condition and old age.
"They also certify that they were present at the time he signed his will on January 3, 1924, at 3.25 p. m.,
and have found his mental state in the same condition as was found by the undersigned in their former
examinations, and that in executing said will the testator had full understanding of the act he was
performing, and full knowledge of the contents thereof.
"In testimony whereof, we sign in Manila this January 3, 1924.
(Sgd.) "FLORENTINO HERRERA
"Tuberias 1264
"Quiapo
(Sgd.) "Dr. FERNANDO CALDERON
"General Hospital
"Manila
(Sgd.) "Dr. ELIAS DOMINGO
"613 Remedios
"Malate"
(Exhibit E in relation with Exhibits C and D.)

Doctor Calderon while on the witness-stand expressed a definite opinion as to the mentality of Tomas
Rodriguez. What follows is possibly the most significant of the doctors statements:
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Dr. CALDERON testifying after interruption:

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"A. I was naturally interested in finding out the true mental state of Tomas Rodriguez, and that was the chief
reason why I accepted and gave my cooperation to Messrs. Elias Domingo and Florentino Herrera because
had I found that Tomas Rodriguez was really insane, I should have ordered his transfer to the San Lazaro
Hospital or to other places, and would not have left him. in the General Hospital. Pursuant to my desire, I
saw Tomas Rodriguez in his room alone twice to have interviews with him, he being a person whom I knew
since several years ago; at the end of the interviews I became convinced that there was nothing wrong with
him; I had not seen anything indicating that he was insane and for this reason I accepted the request of my
companions and joined them; we have been on five different occasions examining Tomas Rodriguez jointly
from the physical standpoint, but chiefly from the standpoint of his mental state; I have been there with
Messrs. Herrera and Elias Domingo, examining Tomas Rodriguez and submitting him to a mental test on the
28, 29, 30 and 31 of December and the 2d of January, 1924 five consecutive days in which we have been
together besides my particular visits.
"Q. Will you please state the result of the observation you made alone before those made by the three of
you jointly?
"A. I asked Tomas Rodriguez some questions when I went alone there, I asked him where he was living
formerly and he well remembered that in Intramuros, Calle Real; I asked him whether he remembered one
Calderon who was living in the upper floor of the house, and then he told me yes; then I asked him about
his tenant by the name of Antonio Jimenez and he told me yes, now I remember that he had two
daughters, Matilde and Paz. Then I told him that I had been living in the house of that gentleman, Antonio
Jimenez, already dead in the upper story of the house which belonged to Tomas Rodriguez; I told him
that Antonio Jimenez was his tenant of the upper story, that is, that he was living on the ground floor and
Antonio Jimenez upstairs, and he remembered all of this; I also began to talk of my brother, Felipe Calderon,
whom he said of course that he knew; he remembered him because he was his companion and was a
successful attorney. This was when I had an interview with him. Then in order to observe better and to be
sure of my judgment or opinion about the mental state of Tomas Rodriguez, I saw him again and we began
to speak of something which I dont remember now. In fine, we talked of things of interest and as I had
finally accepted the request of Drs. Elias Domingo and Florentino Herrera to join them, the first and second
time that Herrera, Domingo and myself went there, no stenographic notes were taken of what happened
there.
"Q. So that before joining Doctors Herrera and Domingo you had already paid two visits to the patient?
"A. Yes, sir.
"Q. From the result of the conversation you had with Tomas Rodriguez on those two visits, what is your
opinion as to his mental capacity?
"A. That he was sick; that he was weak, but I have found absolutely no .incoherence in his ideas; he
answered my questions well, and as I was observing him, there were times when he did not remember
things of the present because this must be admitted but on the other hand he had a wonderful
memory for past events; in talking with him, you would not notice in the conversation any alteration in his
mind nor that that man had lost the reasoning power or logic.
"Q. Did you notice any loss of memory, or that his memory was weakening about things of the past?
"A. About things of the past, I mean that you talk to him now about specific matters, and after about five or
ten minutes he no longer remembers what had been talked of.
x

"Q. Do you remember the conversation you had with him for the first time when the three of you paid a visit
to the patient?
"A. I dont remember the details, but I do remember the questions I put to him. I asked D. Tomas

Rodriguez: You are an old man, aged, sick, why dont you think of making your will? and he said: Yes, I
am thinking to make a will. But why dont you decide? There is no hurry, there is time to make a will, he
said.Then in case you decide to make a will, to whom are you going to leave your property? Dont you have
any relatives? I have a relative, Vicente Lopez, my first cousin, and Margarita Lopez, my first cousin, they
are brothers. In that case, to whom do you want to leave your property? Why, I dont have much, very
little, but I am decided to leave it to my cousin, Vicente Lopez, and his daughter Luz Lopez. Why would you
not give anything to Margarita Lopez? No because her husband is very bad, to use his exact language, is
very bad.
"Q. Did you talk with him on that occasion about his estate?
"A. Yes, sir, he told me that he had three estates, one on Calle Magallanes, another on Calle Cabildo, and
the third on Calle Juan Luna, and besides he had money in the Monte de Piedad and Hogar Filipino.
x

"Q. From the questions made by you and the answers given by Mr. Tomas Rodriguez on that occasion, what
is your opinion as to his mental capacity.
"A. The following: That the memory of Tomas Rodriguez somewhat failed as to things of the present, but is
all right with regard to matters or facts of the past; that his ideas were coherent; that he thought with logic,
argued even with power, and generally in some of the interviews I have arrived at the conclusion that Tomas
Rodriguez had an initiative of his own, did not need that anybody should make him any suggestion, because
he answered in such a way that if you permit me now to show you my stenographic notes, they will prove to
you conclusively that he had an initiative of his own and had no need of anybody making him any question."
(S. R. p. 72.)
Doctor Elias Domingo, who was the attending physician for Tomas Rodriguez throughout all the time that
Rodriguez was in the hospital and who even prior to the placing of Rodriguez in the hospital had examined
him, was likewise certain that Rodriguez possessed sufficient mentality to make a will. Among other things,
Doctor Domingo testified:
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"ARANETA:

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"Q. Have you known D. Tomas Rodriguez?

"Dr. DOMINGO:

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"A. Yes, sir.

"Q. Did you attend D. Tomas Rodriguez as physician?
"A. Yes, sir.
"Q. When did you begin to attend him as physician?
"A. On November 28, 1923, until his death.
"Q. Where did you attend him?
"A. In the General Hospital.
"Q. On November 28 or October 28, 1923, do you remember?
"A. I had been attending him as physician from November 28th although it is true that I had had opportunity
to see and examine him during the months of October and November.
"Q. What was the object of your visits or attendance during the months of October and November?
"A. It was for the purpose of observing his mental state.

"Q. Did you really examine his mental condition or capacity during the months of October and November?
"A. Yes, sir.
"Q. How many times did you visit him?
"A. I dont remember exactly but I visited him about five or six times.
x

"Q. Please tell us the result of your examination during those months of October and November?
"A. I examined him physically and mentally; I am not going to tell here the physical result but the result of
the mental examination, and that is: General Conduct: In most of the times that I have seen him, I found
him Lying on his bed, smoking a cigarette and asked for a bottle of lemonade from time to time; I also
observed that he was very careful when throwing the ash of the cigarette, seeing to it that it did not fall on
the blankets; he also was careful not to throw the stub of the cigarette in any place to avoid fire; I made
more observations as to his general conduct and I found that sometimes Don Tomas could move within the
place although with certain difficulty. On two occasions I found him seated, once seated at the table, seated
on the chair, and the other on a rocking-chair. I also examined his manner of talking and to all questions
that I put to him he answered with a fair coherence and in a relevant manner, although sometimes he
showed meagerness and certain delay. I based these points of my declarations on the questions which are
usually asked when making a mental examination, for instance I asked him, What is your name, and he
correctly answered Tomas Rodriguez; I asked him if he was married and he answered No; I asked him his
profession and he answered that formerly he was an attorney but that at the time I was making the
examination he was not practicing the profession; I asked him with what he supported himself and he said
that he lived upon his income, he said verbatim, I live on my income. I also asked him what the amount of
his income was and he answered that it was about P900; I asked him what the source of this income was
and he said that it came from his property.
"Q. Did you ask him about his property?
"A. No, at that time.
"Q. Proceed.
"A. I also observed his emotional status and affectivity. I found it rather superficial, and he oftentimes got
angry due to his physical disease; I asked him if he had any relatives and he answered correctly saying that
he had. He mentioned Vicente Lopez, Margarita Lopez, and Luz Lopez. As to his memory. His memory for
the past. He very easily remembered past events and when he described them he did it with such pleasure
that he used to smile afterwards if it was a fact upon which one must smile. His memory for recent facts
was very much lessened. I say this because on various occasions and not having known me when he had a
better memory, after I had seen him thrice he remembered my name and he recognized me. Insight and
judgment. I arrived at the conclusion that he had fair knowledge of himself because he knew that he was
sick and could not be moving with ease, but he believed that he could perform with sufficient ease mental
acts; his judgment was also all right because I asked him this question: Supposing that you should find a
bill of P5 in the vestibule of a hotel, what would you do with it? He told me that he would take the bill and
give it to the manager in order that the latter may look for the owner if possible. His reasoning. I found that
he showed a moderate retardation in the flow of his thought, especially with regard to recent events, but
was quite all right as to past events. His capacity. He believed that he was capable of thinking properly
although what did not permit him to do so was his physical decrepit condition. The conclusion is that his
memory is lost for recent events tho not totally and diminution of his intellectual vigor. This is in few words
the result of my examination." (S. R., p. 345.)
Tomas Rodriguez was likewise examined thoroughly by Doctors De los Angeles, Tietze, and Burke. Doctor De
los Angeles had been a witness in the guardianship proceedings and had seen the patient on November 6
and 7, 1923. Doctor Tietze had also been a witness in the guardianship case and had visited the patient on
November 9 and 12, 1923, and on January 15, 1924. Doctors Tietze and Burke together examined
Rodriguez on January 17, 20, and 24, 1924. The three physicians conducted a joint examination on January
27 and 28, and February 10, 1924. As a result, on March 15, 1924, they prepared and signed the
following:
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"MEDICAL CERTIFICATE
"In the Matter of Tomas Rodriguez y Lopez, male, 76 years of age, single and residing or being confined in
the Philippine General Hospital.
"We, the undersigned Doctors, Sixto de los Angeles, W. B. Burke, and Samuel Tietze, do hereby certify as
follows:
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"1. That we are physicians, duly registered under the Medical Act, and are in the actual practice of the
medical profession in the Philippines.
"2. That on January 27th and 28th and February 10th, 1924, at the Philippine General Hospital, we three
have with care and diligence jointly and personally examined the person of said Tomas Rodriguez y Lopez;
and previous to these dates, we have separately and partly jointly observed and examined said patient on
various occasions; Dr. Sixto de los Angeles, at the patients home, 246 Magallanes St., Manila, on November
6th and 7th, 1923; Dr. Samuel Tietze, at the patients home on November 9th and 12th, 1923, all at the
Philippine General Hospital on January 15th, 1924; and Dr. W. B. Burke together with Dr. Samuel Tietze at
the Philippine General Hospital on January 17th, 20th, and 24th, 1924; and as a result of the medical
examinations and the history of the case we found and hereby certify to the following conclusions:
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"(a) That he was of unsound mind suffering from senile dementia, or of mental impairment exceeding to a
pathologic extent the usual conditions and changes found to occur in the involutional period of life.
"(b) That he was under the influence of the above condition continuously, at least from November, 1923, till
the date of our joint reexamination, January 27th and 28th, and February 10th, 1924; and that he would
naturally have continued without improvement, as these cases of insanity are due to organic pathological
changes of the brain. This form of mental disease is progressive in its pathological tendency, going on to
progressive atrophy and degeneration Of the brain, the mental symptoms, of course, running parallel with
such pathological basis.
"(c) That on account of such disease and conditions, his mind and memory were so greatly impaired as to
make him unable to know or to appreciate sufficiently the nature, effect, and consequences of the business
he was engaged in; to understand and comprehend the extent and conditions of his properties; to collect
and to hold in his mind the particulars and details of his business transactions and his relations to the
persons who were or might have been the objects of his bounty; and to free himself from the influences of
importunities, threats, and ingenuities, so that with a relatively less resistance, he might had been induced
to do what others would not have done.
"3. We have diagnosed this case as senile dementia of the simple type, approaching the deteriorated stage
upon the following detailed mental examinations:
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"(a) Disorder of memory. There was almost an absolute loss of memory for recent events, to the extent
that things and occurrences seen or observed only a few minutes previously were completely forgotten.
Faces and names of persons introduced to him were not remembered after a short moment even without
leaving his bedside. He showed no comprehension of the elemental routine required in the management of
his properties, i. e. : who were the lessees of his houses, what rents they were paying, who was the
administrator of his properties, in what banks he deposited his money or the amount of money deposited in
such banks. Regarding his personal relations, he forgot that Mr. Antonio Ventura is the husband of his
nearest woman cousin; that Mrs. Margarita Lopez was married, saying that the latter was single or spinster,
in spite of the fact that formerly, during the past twenty-five years, he was aware of their marriage life. He
did not know the names of the sons and daughters of Mr. Vicente Lopez, one of his nearest relatives, even
failing to name Mrs. Luz Lopez de Bueno, a daughter of said Vicente Lopez, and who now appears to be the
only living beneficiary of his will. He also stated that Mr. Vicente Lopez frequently visited him in the hospital,
though the latter died on January 7th, 1924. He did not recognize and remember the name and face of
Doctor Domingo, his own physician. However, the memory for remote events was generally good, which is a
characteristic symptom of senile dementia.
"(b) Disorientation of time, place, and persons. He could not name the date when asked (day or month);
could not name the hospital wherein he was confined; and failed to recognize the fact that Doctor Domingo
was his physician.

"(c) Disorders of perception. He was almost completely indifferent to what was going on about him. He
also failed to recognize the true valle of objects shown him, that is, he failed to recognize the Saturday
Evening Post nor would he deny that it was a will when presented as such. He also failed to show normal
intellectual perception, making no effort to correlate facts or to understand matters discussed in their proper
light.
"(d) Emotional deterioration. The patient was not known during his time of physical incapacity to express
in any way or lament the fact that he was unable to enjoy the happiness that was due him with his wealth.
As a matter of fact, he showed complete indifference. He showed loss of emotional control by furious
outbreaks over trifling matters and actually behaved like a child; for example, if his food did not arrive
immediately or when his cigar was not lit soon, he would become abusive in his language and show marked
emotional outburst. If the servants did not immediately answer his call, he would break down and cry as a
child.
"(e) Symptoms of decreased intellectual capacity. There was a laxity of the internal connection of ideas.
The patient has shown no insight regarding his own condition. He did not appreciate the attitude of the
parties concerned in his case; he would on several occasions become suspicious and fail to comprehend the
purpose of our examination. He was inconsistent in his ideas and failed to grasp the meaning of his own
statements. When questioned whether he would make 1 will, he stated to Doctor Tietze that he intended to
bequeath his money to San Juan de Dios Hospital and Hospicio de San Jose. When he was informed,
however, that he had made a will on January 3d, 1924, he denied the latter statement, and failed to explain
the former. Although for a long time confined to bed and seriously ill for a long period, he expressed himself
as sound physically and mentally, and in the false belief that he was fully able to administer his business
personally.
"His impairment of the intellectual field was further shown by his inability, despite his knowledge of world
affairs, to appreciate the relative value of the statement made by Doctor Tietze as follows: We have here a
cheque of P2,000 from the King of Africa payable to you so that you may deposit it in the bank. Do you want
to accept the cheque? His answer was as follows: Now I cannot give my answer. It may be a surprise. Such
answer given by a man after long experience in business life, who had handled real estate property, well
versed in the transaction of cheques, certainly shows a breaking down of the above field. No proper
questions were asked why the cheque was given by the King who the King was, why he was selected by the
King of Africa, or if there is a King of Africa at present. He further shows doubt in his mental capability by
the following questions and answers:
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"MARCAIDA:

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"P. Tiene ustedactualmente algun asunto en los tribunales de justicia de Manila?

"R. No recuerdo en este momento.
"P. De tener usted algun aslnto propio en los tribunales de justicia de Manila, a que abogado confiaria usted
la defensa del mismo? R. Al Sr. Marcaida, como conocido antiguo.
"P. Ha hablado usted y colferenciado alguna vez o varias veces en estos dias, o sea desde el 25 de octubre
de 1923 hasta hoy, con algun abagado para que le defendiera algun asunto ante el Juzgado le Primera
Instancia de Manila?
"R. Con ninguno, porque en caso de nombrar, nombraria al Sr. Marcaida. (p. e, deposition, Nov. 19, 1923.)
"ARANETA: P. No recuerda usted que usted me ha encomendado como abogado para que me oponga a
que le declaren a usted loco o incapacitado? R. Si, senor, quien ha solidtado? (P. 9, deposition, Nov. 19,
1923.)
"Dr. DOMINGO:

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"P. Don Tomas, me conoce usted? Se acuerda usted que soy el Doctor Domingo?
"R. Si. (P. 7, sten n., Jan. 28, 1924.)
"P. Quien soy, Don Tomas, usted me conoce?

"R. No se. (P. 6, sten. n., Feb. 10, 1924.)

"Dr. ANGELES:

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"P. Me conoce usted, D. Tomas?

"R. Le conozco de vista. (P. 6, sten. n., Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Tomas, de usted. Yo soy el Doctor Angeles, me conoce usted?
"R. De nombre.
"P. Este es el Doctor Burke, le conoce usted?
"R. De nombre.
"P. Este es el Doctor Domingo, le conoce usted?
"R. De vista.
"P. Este es el Doctor Burke, recuerda usted su nombre?
"R. No. (P. 10, sten. n., Jan. 28, 1924.)
"P. Usted conoce a este Doctor? (Senalando al Doctor Burke).
"R. De vista; su nombre ya lo he olvidado, ya no me acuerdo.
"P. Usted nos ve a los tres? (Doctores Angeles, Burke y Tietze).
"R. Ya lo creo.
"Dr. BURKE:

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"P. Que profesion tenemos? (Senalando a los Sres. Angeles, Burke y Tietze).
"R. Yo creo que son doctores.
"P. Y los dos? (Senalando a los Doctores ~ngeles y Tietze).
"R. No. se.
"P. Y este senor? (Senalando al Doctor Angeles).
"R. No me acuerdo en este momento. (Pp. 4 and 5, sten. n., Feb. 10, 1924.)
"(f) Other facts bearing upon the history of the case obtained by investegation of Doctor Angeles:

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"I. Family history. His parents were noted to be of nervous temper and irritable.
"II. Personal history. He was a lawyer, but did not pursue his practice, devoting the greater part of his life
to collecting antiquities. He was generally regarded by his neighbors as miserly and erratic in the ordinary
habits of life. He lead a very unhygienic life, making no attempt to clean the filth or dirt that was around
him. He was neglectful in personal habits. On April, 1921, he suffered an injury to his forehead, from which
he became temporarily unconscious, and was confined in the Philippine General Hospital for treatment. He
frequently complained of attacks of dizziness and headache, following this injury; suffered from a large
hernia; and about two years ago, he was fined for failure in filing his income tax, from which incident, we
have reason to believe, the onset of his mental condition took place. This incident itself can most probably
be considered as a failure of memory. His condition became progressively worse up to his death.
"4. The undersigned have stated all the above facts contained in this certificate to the best of our knowledge
and belief.

"Manila, P. I., March 15, 1924.

(Sgd.) "SIXTO DE LOS ANGELES
"W. B. BURKE, M. D.
"SAMUEL TIETZE"
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about January 3, 1924, is disclosed by the treatment
record kept daily by the nurses, in which appear the nurses remarks. (Exhibits 8-A, 8-B, and 8-C.) In this
connection, the testimony of the nurses is that Rodriguez was in the habit for no reason at all of calling
"Maria, where are my 50 centavos, where is my key." In explanation of the observations made by the
nurses, the nurse Apolonio Floreza testified:
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"Direct questions of Attorney OCAMPO:

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"Q. Among your observations on the 1st of January, 1924, you say with pains all over the body, and uttered
some incoherent words of the same topics whenever is awakened. How could you observe that he had pains
all over the body?
"APOLONIO FLOREZA, nurse:

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"A. I observed that by the fact that whenever I touched the body of the patient he complained of some
pain.
"Q. On what part of the body did you touch him?
"A. On all the parts of his body.
"Q. How did you touch him, strongly or not?
"A. Slightly.
"Q. When you touched him slightly, what did he do?
"A. He said that it was aching.
"Q. What words did he say when, according to your note, he uttered incoherent words whenever he awakes?
"A. As for instance, Maria, repeating it Where are my 50 centavos, where is my key?
"Q. Did you hear him talk of Maria?
"A. Only the word Maria.
"Q. How long approximately was he talking, uttering the name of Maria, Where are my 50 centavos, and
where is my key?
"A. For two or three minutes.
"Q. Can you tell the court whether on those occasions when he said the name of Maria he said other words
and was talking with somebody?
"A. He was talking to himself.
"Q. This remark on Exhibit 8-B, when was it written by you?
"A. On January 2, 1924.

"Q. In the observation corresponding to January 2, 1924, you also say, With pains all over the body, and
later on, talked too much whenever patient is awakened. How did you happen to know the pain which you
have noted here?
"A. The pains all over the body, I have observed them when giving him baths.
"Q. Besides saying that it ached when .you touched the body, do you know whether he did any extraordinary
thing?
"A. You mean to say acts?
"Q. Acts or words?
"A. Yes, sir, like those words which I have already said which he used to say Maria, the key, 50 centavos.
"Q. You say that he called Maria. What did he say about Maria on that date, January 2, 1924?
"A. He used to say, Maria, where is Maria?
"Q. On that date January 2j 1924, did you answer him when he said Maria?
"A. No, sir.
"Q. In this observation of yours appearing on page 8-C, you say, among other things, with pains all over the
body and shouted whenever he is given injection. Did you really observe this in the patient?
"A. Yes, sir.
"Q. How did he shout?
"ARANETA: Objection as being immaterial.
"COURT: Overruled.
"ARANETA: Exception.
"A. In a loud voice.
"Q. Besides shouting, do you remember whether he said anything?
"A. He repeated the same words I have said before Maria, the 50 centavos, the key.
"Q. When did this observation occur which appears on page 8-C?
"A. On January 3, 1924." (S. R., p. 595.)
On certain facts pertaining to the condition of Tomas Rodriguez, there is no dispute. On January 3, 1924,
Rodriguez had reached the advanced age of 76 years. He was suffering from anaemia, hernia inguinal,
chronic dyspepsia, and senility. Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3, 1924, Doctors Calderon, Domingo, and Herrera
admit that he was senile. They, together with Doctors De los Angeles, Tietze, and Burke, further declare that
his memory was almost an absolute loss for recent events. His memory, however, for remote events was
generally good. He was given to irrational exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon, Domingo, and Herrera certify that the intellectual faculties of the patient
are "sound, except that his memory is weak," and that in executing the will the "testator had full
understanding of the act he was performing, and full knowledge of the contents thereof," Doctors De los
Angeles, Tietze, and Burke certify that Tomas Rodriguez "was of unsound mind" and that they "diagnosed
his case as senile dementia of the simple type, approaching the deteriorated stage." Without attempting at
this stage to pass in judgment on the antagonistic conclusions of the medical witnesses, or on other
disputed points, insofar as the facts are concerned, a resolution of the case comes down to this: Did Tomas

Rodriguez on January 3, 1924, possess sufficient mentality to make a will, or had he passed so far along in
senile dementia as to require the court to find him of unsound mind? We leave the facts in this situation to
pass on to a discussion of the legal phases of the case.
B. Law. The Code of Civil Procedure prescribes as a requisite to the allowance of a will that the testator be
of "sound mind" (Code of Civil Procedure, sec. 614). A "sound mind" is a "disposing mind." One of the
grounds for disallowing a will is "If the testator was insane or otherwise mentally incapable of the execution
of such an instrument at the time of its execution." (Code of Civil Procedure, sec. 634 [2].) Predicated on
these statutory provisions, this court has adopted the following definition of testamentary capacity:"
Testamentary capacity is the capacity to comprehend me nature of the transaction in which the testator is
engaged at the time, to recollect the property to be disposed of and the persons who would naturally be
supposed to have claims upon the testator, and to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty." (Bugnao v. Ubag [1909], 14 Phil., 163, followed in
Bagtas v. Paguio [1912], 22 Phil., 227, and Jocson v. Jocson [1922], 46 Phil., 701.) The mental capacity of
the testator is determined as of the date of the execution of his will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced by the courts only later to be rejected as
incomplete. Of the specific tests of capacity, neither old age, physical infirmities, feebleness of mind,
weakness of the memory, the appointment of a guardian, nor eccentricities are sufficient singly or jointly to
show testamentary incapacity. Each case rests on its own facts and must be decided by its own facts.
There is one particular test relative to the capacity to make a will which is of some practical utility. This rule
concerns the nature and rationality of the will. Is the will simple or complicated? Is it natural or unnatural?
The mere exclusion of heirs will not, however, in itself indicate that the will was the offspring of an unsound
mind.
On the issue of testamentary capacity, the evidence should be permitted to take a wide range in order that
all facts may be brought out which will assist in determining the question. The testimony of subscribing
witnesses to a will concerning the testators mental condition is entitled to great weight where they are
truthful and intelligent. The evidence of those present at the execution of the will and of the attending
physician is also to be relied upon. (Alexander on Wills, vol. I, pp. 433, 484; Wharton & Stilles Medical
Jurisprudence, vol. I, pp. 100 et seq.)
The presumption is that every adult is sane. It is only when those seeking to overthrow the will have clearly
established the charge of mental incapacity that the courts will intervene to set aside a testamentary
document. (Hernaez v. Hernaez [1903], 1 Phil., 689; Bagtas v. Paguio, supra.)
Counsel for the appellee make capital of the testator being under guardianship at the time he made his will.
Citing section 306 of the Code of Civil Procedure and certain authorities, they insist that the effect of the
judgment is conclusive with respect to the condition of the person. To this statement we cannot write down
our conformity. The provisions of the cited section were taken from California, and there the Supreme Court
has never held what is now urged upon us by the appellee. The rule announced that in some states, by force
of statute, the linding of insanity is conclusive as to the existence of insanity during the continuance of
adjudication, is found to rest on local statutes, of which no counterpart is found in the Philippines. (32 C. J.,
647; Gridley v. Boggs [1882], 62 Cal., 190; In the matter of the Estate of Johnson [1881], 57 Cal., 529.)
Even where the question of insanity is put in issue in the guardianship proceedings, the most that can be
said for the finding is that it raises a presumption of incapacity to make a will but does not invalidate the
testament if competency can be shown. The burden of proving sanity in such case is cast upon the
proponents.
It is here claimed that the unsoundness of mind of the testator was the result of senile dementia. This is the
form of mental decay of the aged upon which wills are most often contested. A Newton, a Paschal, a Cooley
suffering under "the variable weather of the mind, the flying vapors of incipient lunacy," would have proved
historic subjects for expert dispute. Had Shakespeares King Lear made a will, without any question, it would
have invited litigation and doubt.
Senile dementia, usually called childishness, has various forms and stages. To constitute complete senile
dementia, there must be such failure of the mind as to deprive the testator of intelligent action. In the first
stages of the disease, a person may possess reason and have will power. (27 L. R. A., N. S. [1~310], p. 89;
Wharton & Stilles Medical Jurisprudence, vol. I, pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.)
It is a rather remarkable coincidence that of all the leading cases which have gone forth from this court,

relating to the testator having a sound and disposing mind, and which have been brought to our notice by
counsel, every one of them has allowed the will, even when it was necessary to reverse the judgment of the
trial court. A study of these cases discloses a consistent tendency to protect the wishes of the deceased
whenever it be legally possible. These decisions also show great tenderness on the part of the court towards
the last will and testament of the aged. (See Hernaez v. Hernaez [1903], 1 Phil., 689, per Arellano, C.J. ; In
the matter of the will of Butalid [1908], 10 Phil., 27, per Arellano, C.J. ; Bugnao v. Ubag [1909], 14 Phil.,
163, per Carson, J., Macapinlac v. Alimurong [1910], 16 Phil., 41, per Arellano, C.J. ; Bagtas v. Paguio
[1912], 22 Phil., 227, per Trent, J., Galvez v. Galvez [1913], 26 Phil., 243, per Torres, J., Samson v. Corrales
Tan Quintin [1923], 44 Phil., 573, per Ostrand, J., and Jocson v. Jocson [1922], 46 Phil., 701, per Villamor,
J.) Because of their peculiar applicability, we propose to make particular mention of four of the earlier cases
of this court.
In the case of Hernaez v. Hernaez, supra, the subject of the action was the will executed by Doa Juana
Espinosa. The annulment of the will was sought, first, upon the ground of the incapacity of the testatrix. She
was over 80 years of age, so ill that three days before she executed the will she received the sacraments
and extreme unction, and two days afterwards she died. Prior thereto she walked in a stooping attitude, and
gave contradictory orders, "as a result of her senile debility." The Chief Justice reached the conclusion that
neither from the facts elicited by the interrogatories nor the documents presented "can the conclusion be
reached that the testatrix was deprived of her mental faculties." The will was held valid and efficacious.
In the case of In the matter of the will of Butalid, supra, the will was contested for the reason that Dominga
Butalid at the date of the execution of the document was not in the free use of her intellectual powers, she
being over 90 years of age, lying in bed seriously ill, senseless, and unable to utter a single word, so that
she did not know what she was doing when she executed the will, while the document was claimed to have
been executed under the influence and by the direction of one of the heirs designated in the will. Yet after
an examination of the evidence, the Chief Justice rendered judgment reversing the judgment appealed from
and declaring the will presented for legalization to be valid and sufficient.
In the case of Bugnao v. Ubag, supra, the court gave credence to the testimony of the subscribing witnesses
who swore positively that at the time of the execution of the will the testator was of sound mind and
memory. Based on these and other facts, Mr. Justice Carson, speaking for the court, laid down the following
legal principles:
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"Between the highest degree of soundness of mind and memory which unquestionably carries with it full
testamentary capacity, and that degree of mental aberration generally known as insanity or idiocy, there are
numberless degrees of mental capacity or incapacity, and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or from age, will not render a person incapable
of making a will, a weak or feeble minded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about, and how or to whom he is disposing of his
property (Lodge v. Lodge, 2 Houst. [Del. ], 418); that, To constitute a sound and disposing mind, it is not
necessary that the mind should be unbroken or unimpaired, unshattered by disease or otherwise (Sloan v.
Maxwell, 3 N. J. Eq., 563); that It has not been understood that a testator must possess these qualities (of
sound and disposing mind and memory) in the highest degree . . . Few indeed would be the wills confirmed,
if this is correct. Pain, sickness, debility of body, from age or infirmity, would, according to its violence or
duration in a greater or less degree, break in upon, weaken, or derange the mind, but the derangement
must be such as deprives him of the rational faculties common to man (Den. v. Vancleve, 5 N. J. L., 680);
and, that Sound mind does not mean a perfectly balanced mind. The question of soundness is one of
degree (Boughton v. Knight, L. R., 3 P. & D., 64; 42 L. J. P., 25); on the other hand, it has been held that
testamentary incapacity does not necessarily require that a person shall actually be insane or of an unsound
mind. Weakness of intellect, whether it arises from extreme old age, from disease, or great bodily infirmities
or suffering, or from all these combined, may render the testator in capable of making a valid will,
providing such weakness really disqualifies her from knowing or appreciating the nature, effects, or
consequences of the act she is engaged in (Manatt v. Scott, 106 Iowa, 203; 68 Am. St. Rep., 293, 302)."
cralaw virtua1aw library

In the case of Bagtas v. Paguio, supra, the record shows that the testator for some fourteen or fifteen years
prior to the time of his death suffered from a paralysis of the left side of his body, that a few years prior to
his death, his hearing became impaired, and that he had lost the power of speech. However, he retained the
use of his sight hand and could write fairly well. Through the medium of signs, he was able to indicate his
wishes to his family. The will was attacked on the ground that the testator lacked mental capacity at the
time of its execution. The will was nevertheless admitted to probate. Mr. Justice Trent, speaking for the
court, announced the following pertinent legal doctrines:
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". . . There are many cases and authorities which we might cite to show that the courts have repeatedly held
that mere weakness of mind and body, induced by age and disease do not render a person incapable of
making a will. The law does not require that a person shall continue in the full enjoyment and use of his
pristine physical and mental powers in order to execute a valid will If such were the legal standard, few
indeed would be the number of wills that could meet such exacting requirements. The authorities, both
medical and legal, are universal in the statement that the question of mental capacity is one of degree, and
that there are many gradations from the highest degree of mental soundness to the lowest conditions of
diseased mentality which are denominated as insanity and idiocy.
"The right to dispose of property by testamentary disposition is as sacred as any other right which a person
may exercise and this right should not be nullified unless mental incapacity is established in a positive and
conclusive manner. In discussing the question of testamentary capacity, it is stated in volume 28, page 70,
of the American and English Encyclopedia of Law, that
"Contrary to the very prevalent lay impression, perfect soundness of mind is not essential to testamentary
capacity. A testator may be afflicted with a variety of mental weaknesses, disorders, or peculiarities and still
be capable in law of executing a valid will. (See the numerous cases there cited in support of this
statement.)
"The rule relating to testamentary capacity is stated in Buswell on Insanity, section 365, and quoted with
approval in Campbell v. Campbell (130 Ill., 466), as follows:
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"To constitute a sound and disposing mind, it is not necessary that the mind shall be wholly unbroken,
unimpaired, or unshattered by disease or otherwise, or that the testator should be in the full possession of
his reasoning faculties.
"In note, 1 Jarman on Wills, 38, the rule is thus stated:

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"The question is not so much, what was the degree of memory possessed by the testator, as, had he a
disposing memory? Was he able to remember the property he was about to bequeath, the manner of
distributing it, and the objects of his bounty? In a word, were his mind and memory sufficiently sound to
enable him to know and understand the business in which he was engaged at the time when he executed his
will. (See authorities there cited.)
"In Wilson v. Mitchell (101 Penn., 495), the following facts appeared upon the trial of the case: The testator
died at the age of nearly 102 years. In his early years he was an intelligent and well informed man. About
seven years prior to his death he suffered a paralytic stroke and from that time his mind and memory were
much enfeebled. He became very dull of hearing and in consequence of the shrinking of his brain he was
affected with senile cataract causing total blindness. He became filthy and obscene in his habits, although
formerly he was observant of the proprieties of life. The court, in commenting upon the case, said:
jgc:chanrobles.com .ph

"Neither age, nor sickness, nor extreme distress, nor debility of body will affect the capacity to make a will,
if sufficient intelligence remains. The failure of memory is not sufficient to create the incapacity, unless it be
total, or extend to his immediate family or property . . .
x

"Dougal (the testator) had lived over one hundred years before he made the will, and his physical and
mental weakness and defective memory were in striking contrast with their strength in the meridian of his
life. He was blind; not deaf, but hearing impaired; his mind acted slowly, he was forgetful of recent events,
especially of names, and repeated questions in conversation; and sometimes, when aroused from sleep or
slumber, would seem bewildered. It is not singular that some of those who had known him when he was
remarkable for vigor and intelligence, are of the opinion that his reason was so far gone that he was
incapable of making a will, although they never heard him utter an irrational expression.
"In the above case the will was sustained. In the case at bar we might draw the same contrast as was
pictured by the court in the case just quoted . . ."
cralaw virtua1aw library

The particular differences between all of the Philippine cases which are cited and the case at bar are that in
none of the Philippine cases was there any declaration of incompetency and in none of them were the facts
quite as complicated as they are here. A case in point where the will was contested, because the testator

was not of sound and disposing mind and memory and because at the time of the making of the will he was
acting under the undue influence of his brothers, and where he had a guardian when he executed his will, is
Ames Will ([1902] 40 Ore., 495). Mr. Justice Moore, delivering the opinion of the court, in part said:
jgc:chanrobles.com .ph

"It is contended by contestants counsel that, on the day said pretended -will purports to have been
executed, Lowell was declared incompetent by a court which had jurisdiction of the person and subjectmatter, and that the decree therein appointing a guardian of his person and estate raises the disputable
presumption that he did not possess sufficient testamentary capacity at that time, to overcome which
required evidence so strong as to leave no reasonable doubt as to his capacity to make a valid will, and, the
testimony introduced by the proponent being insufficient for that purpose, the court erred in admitting it to
probate . . .
"The appointment of a guardian of a person alleged to be non compos mentis, by a court having jurisdiction,
must necessarily create a presumption of the mental infirmity of the ward; but such decree does not
conclusively show that the testamentary capacity of the person under guardianship is entirely destroyed,
and the presumption thus created may be overcome by evidence proving that such person at the time he
executed a will was in fact of sound and disposing mind and memory: Stone v. Damon, 12 Mass., 487;
Breed v. Pratt, 18 Pick., 115; In re Slingers Will, 72 Wis., 22 (37 N. W., 236). . . .
". . . The testimony shows that the testator retained a vivid recollection of the contents of the books he had
read and studied when he was young, but that he could not readily recall to his mind the ordinary incidents
of his later life. The depth and intensity of mental impressions always depend upon, and are measured by,
the degree of attention given to the perception of facts, which requires observation, or to the conception of
truths, which demands reflection; and hence the inability of a person to recollect events occurring recently is
evidence of mental decay, because it manifests a want of power of concentration of the mind. The aged live
in the past, and the impressions retained in their minds are those that were made in their younger days,
because at that period of their lives they were able to exercise will power by giving attention. While the
inability of a person of advanced years to remember recent events distinctly undoubtedly indicates a decay
of the human faculties, it does not conclusively establish senile dementia, which is something more than a
mere loss of mental power, resulting from old age, and is not only a feeble condition of the mind, but a
derangement thereof. . . The rule is settled in this state that if a testator at the time he executes his will
understands the business in which he is engaged, and has a knowledge of his property, and how he wishes
to dispose of it among those entitled to his bounty, he possesses sufficient testamentary capacity,
notwithstanding his old age, sickness, debility of body, or extreme distress.
x

"It is contended by contestants counsel that if Lowell, at the time he executed the pretended will, was not
wholly lacking in testamentary capacity, he was, in consequence of age, ill health, debility of body, and
infirmity of will power, susceptible to persuasion by his friends, and that his brothers, Andrew and Joseph,
having knowledge thereof, took advantage of his physical and mental condition, and unduly influenced him
to devise and bequeath his property in the manner indicated, attempting thereby to deprive the contestant
of all interest therein except such as was given her by statute. . . Assuming that he was easily persuaded,
and that his brothers and the persons employed by them to care for him took advantage of his enfeebled
condition and prejudiced his mind against the contestant, did such undue influence render the will
theretofore executed void? . . . When a will has been properly executed, it is the duty of the courts to uphold
it, if the testator possessed a sound and disposing mind and memory, and was free from restraint and not
acting under undue influence, notwithstanding sympathy for persons legally entitled to the testators bounty
and a sense of innate justice might suggest a different testamentary disposition.
"Believing, as we do, that the findings of the circuit court are supported by the weight of the testimony, its
decree is affirmed."
cralaw virtua1aw library

Insofar as the law on testamentary capacity to make a will is concerned, and carrying alone one step further
the question suggested at the end of the presentation of the facts on the same subject, a resolution of the
case comes down to this: Did Tomas Rodriguez on January 3, 1924, possess sufficient mentality to make a
will which would meet the legal test regarding testamentary capacity, and have the proponents of the will
carried successfully the burden of proof and shown him to be of sound mind on that date?
II. UNDUE INFLUENCE

A. Facts. The will was attacked on the further ground of undue influence exercised by the persons
benefited in the will in collaboration with others. The trial judge found this allegation to have been
established and made it one of the bases of his decision. It is now for us to say if the facts justify this
finding.
Tomas Rodriguez voluntarily named Vicente F. Lopez as his administrator. The latter subsequently became
his guardian. There is every indication that of all his relatives Tomas Rodriguez reposed the most confidence
in Vicente F. Lopez and his daughter Luz Lopez de Bueno. Again, it was Vicente F. Lopez who, on the
suggestion of Rodriguez, secured Maximino Mina to prepare the will, and it was Luz Lopez de Bueno who
appears to have gathered the witnesses and physicians for the execution of the will. This faction of the
Lopez family was also shown a favor through the orders of Doctor Domingo as to who could be admitted to
see the patient.
The trial judge entertained the opinion that there existed "a preconceived plan on the part of the persons
who surrounded Tomas Rodriguez" to secure his signature to the testament. The trial judge may be correct
in this supposition. It is hard to believe, however, that men of the standing of Judge Mina, Doctors Calderon,
Domingo, Herrera, and De Asis, and Mr. Legarda would so demean themselves and so sully their characters
and reputations as to participate in a scheme having for its purpose to delude and to betray an old man in
his dotage. Rather do we entertain the opinion that each of the gentlemen named was acting according to
the best of his ability to assist in a legitimate act in a legitimate manner. Moreover, considering the attitude
of Tomas Rodriguez toward Margarita Lopez and her husband and his apparent enmity toward them, it
seems fairly evident that even if the will had been made in previous years when Rodriguez was more nearly
in his prime, he would have prepared somewhat a similar document.
B. Law. One of the grounds for disallowing a will is that it was procured by undue and improper pressure
and influence on the part of the beneficiary or some other person for his benefit (Code of Civil Procedure,
sec. 634[4]). Undue influence, as here mentioned in connection with the law of wills, and as further
mentioned in the Civil Code (art. 1265), may be defined as that which compels the testator to do that which
is against the will from fear, the desire of peace, or from other feeling which he is unable to resist.
The theory of undue influence is totally rejected as not proved.
III. JUDGMENT
To restate the combined issue of fact and law in this case pertaining to testamentary capacity: Did Tomas
Rodriguez on January 3, 1924, possess sufficient mentality to make a will which would meet the legal test
regarding testamentary capacity, and have the proponents of the will carried successfully the burden of
proof and shown him to be of sound mind on that date?
Two of the subscribing witnesses to the will, one a physician, testified clearly to the regular manner in which
the will was executed and to the testators mental condition. The other subscribing witness, also a physician,
on the contrary testified to a fact which, if substantiated, would require the court to disallow the will. The
attending physician and three other eminent members of the medical fraternity, who were present at the
execution of the will, expressed opinions entirely favorable to the capacity of the testator. As against this we
have the professional speculations of three other equally eminent members of the medical profession who,
however, were not included among those present when the will was executed. The advantage on these facts
is all with those who offer the will for probate.
The will was short. It could easily be understood by a person in physical distress. It was reasonable, that is,
it was reasonable if we take into account the evident prejudice of the testator against the husband of
Margarita Lopez.
With special reference to the definition of testamentary capacity, we may say this: On January 3, 1924,
Tomas Rodriguez, in our opinion, comprehended the nature of the transaction in which he was engaged. He
had had two conferences with his lawyer, Judge Mina, and knew what the will was to contain. The will was
read to him by Mr. Legarda. He signed the will and its two copies in the proper places at the bottom and on
the left margin. At that time the testator recollected the property to be disposed of and the persons who
would naturally be supposed to have claims upon him. While for some months prior to the making of the will
he had not managed his property, he seems to have retained a distinct recollection of what it consisted and
of his income. Occasionally his memory failed him with reference to the names of his relatives. Ordinarily, he
knew who they were. He seemed to entertain a predeliction towards Vicente F. Lopez as would be natural
since Lopez was nearest to his own age. The testator comprehended the manner in which the instrument

distributed the property among the objects of his bounty. His conversations with Judge Mina disclosed an
insistence on giving all of his property to the two persons whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of advanced years, may have been physically
decrepit, may have been weak of intellect, may have suffered a loss of memory, may have had a guardian,
and may have been extremely eccentric, but he still possessed that spark of reason and of life, that strength
of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the
law terms "testamentary capacity." That in effect is the definite opinion which we reach after an exhaustive
and exhausting study of a tedious record, after weighing the evidence carefully and conceding all good faith
to the witnesses for the oppositors, and after giving to the case the serious consideration which it deserves.
The judgment of the trial court will be set aside and the will of Tomas Rodriguez y Lopez will be admitted to
probate, without special pronouncement as to costs in this instance.

SECOND DIVISION
G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,
Administratrix, petitioner-appellee,
vs.
MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

ABAD SANTOS, J.:

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio
Ramirez among the principal beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his
two grandnephews Roberto and Jorge Ramirez; and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the
companion Wanda is an Austrian who lives in Spain. Moreover, the testator provided for
substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow
as compulsory heir. His will was admitted to probate by the Court of First Instance of Manila, Branch
X, on July 27, 1965. Maria Luisa Palacios was appointed administratrix of the estate. In due time she
submitted an inventory of the estate as follows:
INVENTARIO
Una sexta parte (1/6) proindiviso de un te
rreno, con sus mejoras y edificaciones, situadoen
la Escolta, Manila............................................................. P500,000.00
Una sexta parte (1/6) proindiviso de dos
parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00
por accion ................................................................................8,347.00
Diez mil ochocientos seize (10,806) acciones
de la 'Central Luzon Milling Co.', disuelta y en
liquidacion a P0.15 por accion ..............................................1,620.90
Cuenta de Ahorros en el Philippine Trust
Co.............................................................................................. 2,350.73
TOTAL.............................................................. P512,976.97
MENOS:
Deuda al Banco de las Islas Filipinas, garantizada con prenda de las acciones de La Carlota ......... P 5,000,00
VALOR LIQUIDO........................................... P507,976.97
The testamentary dispositions are as follows:
A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad,
residentes en Manila, I.F., calle 'Alright, No. 1818, Malate, hijos de su sobrino D.
Jose Ma. Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes,
y, en su defecto, con sustitucion vulgar reciprocal entre ambos.
El precedente legado en nuda propiedad de la participacion indivisa de la finca
Santa Cruz Building, lo ordena el testador a favor de los legatarios nombrados, en
atencion a que dicha propiedad fue creacion del querido padre del otorgante y por
ser aquellos continuadores del apellido Ramirez,
B.Y en usufructo a saber:
a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle
Ramirez, domiciliada en IE PECO, calle del General Gallieni No. 33, Seine Francia,
con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski, de Palma
de Mallorca, Son Rapina Avenida de los Reyes 13,
b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Nrobleski con sustitucion vulgar v fideicomisaria a saber:

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo

Jankowski, de Son Rapina Palma de Mallorca; y encuanto a la mitad restante, a
favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida St. Ermita,
Manila, I.F.
A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las
usufiructuarias nombradas conjuntamente con los nudo propietarios, podran en
cualquier memento vender a tercero los bienes objeto delegado, sin intervencion
alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the
deceased is to be divided into two parts. One part shall go to the widow 'en pleno dominio" in
satisfaction of her legitime; the other part or "free portion" shall go to Jorge and Roberto Ramirez "en
nuda propriedad." Furthermore, one third (1/3) of the free portion is charged with the widow's
usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar
substitution in favor of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan
Pablo Jankowski and Horacio V. Ramirez, with respect to Wanda's usufruct are invalid because the
first heirs Marcelle and Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second heirs or substitutes
within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a usufruct
over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5,
Article III of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in
the Santa Cruz (Escolta) Building between the widow Marcelle and the appellants, violates the
testator's express win to give this property to them Nonetheless, the lower court approved the project
of partition in its order dated May 3, 1967. It is this order which Jorge and Roberto have appealed to
this Court.
1. The widow's legitime.
The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership.
They admit that the testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of
the Civil Code "If the only survivor is the widow or widower, she or he shall be entitled to one-half of
the hereditary estate." And since Marcelle alone survived the deceased, she is entitled to one-half of
his estate over which he could impose no burden, encumbrance, condition or substitution of any kind
whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question and justifiably so. It
appears that the court a quo approved the usufruct in favor of Marcelle because the testament
provides for a usufruct in her favor of one-third of the estate. The court a quo erred for Marcelle who
is entitled to one-half of the estate "en pleno dominio" as her legitime and which is more than what
she is given under the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testator's intention for as stated above his dispositions
even impaired her legitime and tended to favor Wanda.
2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may
enter into the inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that
there are several kinds of substitutions, namely: simple or common, brief or compendious,
reciprocal, and fideicommissary (Art. 858, Civil Code.) According to Tolentino, "Although the Code
enumerates four classes, there are really only two principal classes of substitutions: the simple and
the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the heir or
heirs instituted in case such heir or heirs should die before him, or should not wish,
or should be incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall
comprise the three mentioned in the preceding paragraph, unless the testator has
otherwise provided.
The fideicommissary substitution is described in the Civil Code as follows:
ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir
the whole or part of inheritance, shall be valid and shall take effect, provided such
substitution does not go beyond one degree from the heir originally instituted, and
provided further that the fiduciary or first heir and the second heir are living at time of
the death of the testator.
It will be noted that the testator provided for a vulgar substitution in respect of the legacies of
Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar a favor de sus respectivos
descendientes, y, en su defecto, con substitution vulgar reciprocal entre ambos.
The appellants do not question the legality of the substitution so provided. The appellants question
the sustitucion vulgar y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the
one-third usufruct over the estate given to the widow Marcelle However, this question has become
moot because as We have ruled above, the widow is not entitled to any usufruct.
The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's
usufruct over two thirds of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or
stated differently because she did not predecease the testator. But dying before the testator is not
the only case for vulgar substitution for it also includes refusal or incapacity to accept the inheritance
as provided in Art. 859 of the Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that
it is void for the following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the
heir originally instituted. Art. 863 of the Civil Code validates a fideicommissary substitution "provided
such substitution does not go beyond one degree from the heir originally instituted."
What is meant by "one degree" from the first heir is explained by Tolentino as follows:
Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or
transmission. The Supreme Court of Spain has decidedly adopted this construction.
From this point of view, there can be only one tranmission or substitution, and the
substitute need not be related to the first heir. Manresa, Morell and Sanchez Roman,
however, construe the word "degree" as generation, and the present Code has
obviously followed this interpretation. by providing that the substitution shall not go
beyond one degree "from the heir originally instituted." The Code thus clearly
indicates that the second heir must be related to and be one generation from the first
heir.
From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary (Op. cit., pp. 193-194.)
(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as
required by Arts. 865 and 867 of the Civil Code. In fact, the appellee admits "that the testator
contradicts the establishment of a fideicommissary substitution when he permits the properties
subject of the usufruct to be sold upon mutual agreement of the usufructuaries and the naked
owners." (Brief, p. 26.)
3. The usufruct of Wanda.
The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void
because it violates the constitutional prohibition against the acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain in the Philippines. (Art. XIII.)
The court a quo upheld the validity of the usufruct given to Wanda on the ground that the
Constitution covers not only succession by operation of law but also testamentary succession. We
are of the opinion that the Constitutional provision which enables aliens to acquire private lands does
not extend to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a
real right, does not vest title to the land in the usufructuary and it is the vesting of title to land in favor
of aliens which is proscribed by the Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed
as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership
and the usufruct to Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski
and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to
costs.
SO ORDERED.
EN BANC
G.R. No. L-18498

March 30, 1967

TESTATE ESTATE OF VITO BORROMEO. JOSE H. JUNQUERA, petitioner-appellee,

vs.
CRISPIN BORROMEO, ET AL., oppositors-appellants.
REPUBLIC OF THE PHILIPPINES, intervenor-appellant.
Benjamin A. Rallon for oppositor-appellant Fortunato Borromeo.
Crispen Baizas and Associates for heirs oppositors-appellants Tomas Borromeo and Amelia
Borromeo.
Office of the Solicitor General for intervenor oppositor-appellant Republic.
Miguel Cuenco and Fernando S. Ruiz for heirs oppositors-appellants Crispin Borromeo, Teofilo
Borromeo, et al.
Filiberto Leonardo for petitioner-appellee.
DIZON, J.:
Vito Borromeo, a widower and permanent resident of the City of Cebu, died on March 13, 1952, in
Paraaque, Rizal, at the age of 88 years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19 of the same year, Jose H. Junquera, filed with the Court of First Instance of said province
a petition for the probate of a one page document as the last will left by said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof (Special Proceedings No. 916-R). The
document now in the record as Exhibit "A" was dated May 17, 1946, drafted in Spanish, and
allegedly signed, and thumbmarked by said deceased, in the presence of Dr. Cornelio G.
Gandionco, Eusebio Cabiluna and Filiberto Leonardo as attesting witnesses. On June 14, 1952, the
probate court appointed Junquera as special administrator of the estate.
On November 14 of the same year, Teofilo Borromeo filed an opposition to the probate of the will
based on the following grounds: (1) that the formalities required by law had not been complied with;

(2) that the testator was mentally incapable of making a will at the time of its execution; (3) that the
will was procured by undue and improper influence, on the part of the beneficiaries and/or some
other person; (4) that the signature of the testator was procured by fraud; and (5) that the testator
acted by mistake or did not intend the instrument he signed to be his will at the time he affixed his
signature thereto.
Upon motion of the abovenamed oppositor, on June 9, 1953, the Court removed Junquera as
special administrator and appointed Dr. Patricio Beltran in his place.
On November 27, 1953, Vitaliana Borromeo, a niece of the deceased, filed her own opposition to the
probate of the will, on the ground that the signature "Vito Borromeo" appearing thereon was a
forgery. Other oppositions were subsequently filed by Patrocinio Borromeo de Tabotabo (her
opposition was later withdrawn), Lilia Morre de Tabotabo, Lamberto Morre, Patricia Morre de
Ranario, Aurora Morre de Borromeo, Ramon Ocampo, Isagani Morre and Rosario Morre, invoking
substantially the same grounds mentioned heretofore.
Meanwhile, Tomas, Amelia and Fortunato Borromeo, manifestly on behalf of the "Cebu Arcade
Company, T. L. Borromeo y Cia.", a duly organized partnership controlled by them, filed a motion to
exclude from the inventory of the Estate previously filed by the new special administrator, thirteen
parcels of land situated in the City of Cebu with a total area of 2,148 square meters, alleging that
during his lifetime the deceased testator had sold said lots to them, as evidenced by the document
now in the record as Exhibit F-1 executed on May 17, 1945, confirming the alleged previous sale.
After due hearing, the court, in its order of July 16, 1954, denied the motion for exclusion, ruling that
movants' remedy was to file a separate accion reivindicatoria against the administrator.
On October 28, 1955, the Republic of the Philippines filed a motion for leave to intervene and join
the oppositors in contesting the probate of the will, on the ground that, should the estate be
adjudicated the latter by intestacy, it stood to collect a considerable amount by way of estate and
inheritance taxes. In its order of December 10 of the same year, the Court allowed the intervention.
After a prolonged trial, on May 28, 1960, the Court rendered a decision denying the probate of the
will and declaring itself without jurisdiction to pass upon the question of ownership over the thirteen
lots which the Cebu Arcade etc. claimed as its own. All the parties appealed the proponents of the
will from the portion of the decision denying probate, and the oppositors and the Republic of the
Philippines, from that portion thereof where the court refused to decide the question of ownership of
the thirteen lots already mentioned.
The proponents of the disputed will, mainly with the testimony of the three attesting witnesses,
Cornelio Gandionco, Filiberto Leonardo and Eusebio Cabiluna, sought to prove the following facts:
In the morning of May 17, 1945, Tomas Borromeo, complying with the request of Vito Borromeo,
went to the house of Atty. Filiberto Leonardo to request him to be a witness at the execution of the
latter's last will. Dr. Cornelio Gandionco, who at the time happened to be in the house of Leonardo,
was likewise requested to act as such. Together, the three went to the residence of Vito Borromeo at
Ramos Street, Cebu City. Upon their arrival the third witness, Eusebio Cabiluna, who was living on
the ground floor of the house, was asked to come upstairs. Thereafter, in their presence, Vito
Borromeo executed first, the document Exhibit "F" (deed of confirmation of an alleged previous sale
to Cebu Arcade Company, T. L. Borromeo y Cia.) witnessed by Gandionco and Cabiluna. Later, Vito
Borromeo, being of sound and disposing mind, and without pressure or influence exerted on him,

dictated the substance of his will to Tomas Borromeo, who in turn typewrote it in proper legal
language. The document was then read by Vito Borromeo, who later signed and thumbmarked it
(Exhibit "A") and carbon copies thereof (Exhibits "E" and "K") in the presence of the attesting
witnesses, who, in turn, signed the will and its copies in the presence of Vito Borromeo and of each
other.
Proponents also placed the Rev. Fr. Julio Corres, a Spanish Catholic priest who was the confessor
of Vito Borromeo from 1942 to 1946, the Rev. Fr. Sergio Alfafara, who was his confessor from 1946
to 1947, and Vicenta Maacap, a mid-wife who lived in the testator's house and had served him from
May 1945 up to his death on March 30, 1952 on the witness stand. The gist of their testimony is to
the effect that at the time of the execution of the will, Vito Borromeo was still strong and could move
around freely with the aid of a cane; that he was still mentally alert and was a man of strong will; that
his right hand was unimpaired and he could write with it unaided; that as a matter of fact
according to Vicenta Maacap he still wrote personal letters to Tomas Borromeo, could eat by
himself and even played the piano.
On the other hand, the oppositors presented several witnesses who testified that the signatures
purporting to be those of Vito Borromeo on the document Exhibit "A" and its copies were forgeries;
that they were too good and too perfect signatures and, therefore, quite impossible for the deceased
an ailing man already 82 years old on May 17, 1945 to write; that he was found "positive for
bacillus leprosy" by Dr. Antonio Garcia as early as 1926 or 1927, having been treated for it
consistently by injections of chaulmoogra oil administered by Dr. Max Borromeo and Dr. Cornelio
Gandionco; that Vito Borromeo's usual signatures during his better days had always been
characterized by certain flourishes, technically called "rubric"; that Vito Borromeo had also reared
and educated two of the oppositors, Crispin Borromeo and the late Teofilo Borromeo and there was
no conceivable reason why they were left out in the will, if any such will had really been made by him
knowingly; that the testamentary witness Cornelio Gandionco, is a nephew of the other witness,
Filiberto Leonardo, and was the fiance of Angeles Borromeo, a sister of Tomas Borromeo, one of the
instituted heirs; that the third testamentary witness, Eusebio Cabiluna is the real father of Fortunato
Borromeo, another instituted heir, who admittedly grew up and was reared by Vito Borromeo and his
wife Juliana Evangelista since he was barely three months; that Amelia Borromeo, the third instituted
heir, is a younger sister of Tomas Borromeo and dependent upon him; that on May 17, 1945, the
deceased's leprosy was so far advanced that the fingers of his right hand were already hardened
and atrophied, this making it difficult, if not impossible, for him to write; and that on the same date,
his sense of hearing and his eyesight had been considerably impaired, his eyes being always watery
due to the progress of his leprosy.
The oppositors also presented Felipe Logan of the National Bureau of Investigation and Jose G.
Villanueva, as handwriting experts, who testified, after examining the supposed signatures of the
deceased in Exhibit "A" and comparing them with his accepted standard signatures, that the
questioned signatures were forgeries. The proponents, however, presented their own handwriting
expert, Martin Ramos, who testified to the contrary.
The trial court refused to believe the testimony of the attesting witnesses and, as a result, denied the
petition for probate, because, in its opinion, they appeared not to be "wholly disinterested persons"
and because of the serious discrepancies in their testimonies with respect to the number of copies
made of the disputed document. The court also found that the physical condition of the deceased at
the time of the execution of the questioned document was such that it was highly improbable, if not
impossible, for him to have affixed his signatures on the documents Exhibits A, E and K in the

spontaneous and excellent manner they appear to have been written. Thus, the court was also led to
believe the testimony of the handwriting experts for oppositors, adverse to the genuineness of the
signatures of Vito Borromeo on the questioned document more than that of the handwriting expert
presented by the proponents of the will.
It seems clear, therefore, that the main issue to be decided in the present appeal is whether or not
the evidence of record is sufficient to prove the due execution of the will in question.
1wph1.t

It must be conceded that in this jurisdiction, the subscribing witnesses to a contested will are
regarded as the best witnesses in connection with its due execution. It is similarly true, however, that
to deserve full credit, their test, testimony must be reasonable and unbiased, and that, as in the case
of any other witness, their testimony may be overcome by any competent evidence direct or
circumstantial (Board, etc. vs. Shasser, 10 Kan. 585, 168 Pac. 836 [1917]).
It is also an appellate practice of long standing in this jurisdiction to accord great weight to the
findings of fact made by the trial court and not to disturb them unless said court had failed to
consider material facts and circumstances or had given undue weight to, or misconstrued the
testimony of particular witnesses, the reason for this being that the trial judge had full opportunity to
hear and observe the conduct and demeanor of the witnesses while testifying and was consequently
in a better position than the reviewing court to determine the question of their credibility. While this is
not applicable to the present case because His Honor, the judge who penned the appealed decision
was not the same judge before whom the evidence of the parties was presented, it must be stated
that, judging from the carefully written decision under review, it was only after a thorough study of the
record that His Honor arrived at the conclusion that the subscribing witnesses do not appear to be
wholly disinterested persons.
On the matter of the number of copies made of the questioned will allegedly signed by the testator
and the three subscribing witnesses, His Honor found that Cabiluna was very uncertain and
confused; that a certain stage of his examination, he said that only two copies of the will were
prepared the original and one carbon copy while at another stage he affirmed that he did not
know whether or not there was a duplicate and that all he could say was that he had affixed his
signature three times (Transcript, Marquiala, August 22, 1958, pp. 49-50). In truth, however, he really
signed six (6) times twice on the original and twice on each of the two copies. Adding confusion to
the situation is the answer he gave when he was asked if Vito Borromeo also signed the carbon
copy, to which his answer was "I did not see" (Idem., p. 50).
On the other hand, the other subscribing witness, Atty. Filiberto Leonardo, testified categorically that
there were only the original and one carbon copy of the will and that the testator and all the
subscribing witnesses signed both (Transcript, Marquiala, December 23, 1953, pp. 167, 210, and
218). However, the naked and highly disturbing fact is that, contrary to what is inferable from the
vacillating testimony of Cabiluna and the categorical assertion of Atty. Leonardo, the proponents of
the questioned will themselves presented three copies of said will; the original, a carbon duplicate
copy and a carbon triplicate copy, now in the record as Exhibits A, E and K, respectively.
While it is true that the testimony of these subscribing witnesses was given around eight years after
the alleged execution of the questioned will, still we believe that the transaction in which they claim
to have taken an important part is of such character and importance that it can not be a very easy
matter for anyone of them to have a hazy recollection of the number of copies signed by the testator
and by them. Stranger still would it be for them to say something in open contradiction with the

reality on the matter. If, as may be clearly deduced from their testimony Cabiluna and Leonardo's
there was only the original and one copy signed by the testator and the subscribing witnesses,
why is it that three original and two copies were really in existence and were produced in court
during the trial?
In the case of the third subscribing witness, Dr. Cornelio Gandionco, the imputation was made by
two witnesses, Dr. Teofilo Borromeo and Judge Crispin Borromeo, that he was the fiance of Angeles
Borromeo, sister of Tomas Borromeo, who is one of the three heirs instituted in the questioned will,
evidently to show that he is not a completely disinterested witness. The evidence to this effect
appears to have remained unimpeached, although the proponents of the will could have done it by
calling on Dr. Gandionco himself or on Angeles Borromeo to deny the imputation.
Moreover, the evidence also disclose that Dr. Gandionco was the uncle of the other subscribing
witness, Atty. Leonardo, and that, in fact, they were living together at the time of the alleged
execution of the will. This circumstance apparently trivial can not be taken lightly because in
view of appellee's claim that Angeles Borromeo was the fiance of Dr. Gandionco, it would not be
unreasonable to entertain the suspicion that both subscribing witnesses were not wholly
disinterested. Material to this point is the fact established by the evidence that Atty. Leonardo was
the notary public before whom the document Exhibit 4-A which purports to convey to a
partnership controlled by the heirs instituted in the questioned will thirteen parcels of land situated in
the commercial center of Cebu City was supposedly acknowledged by the testator on the same
date May 17, 1945.
In the light of the foregoing, We can not see our way clear to holding that the trial court erred in
refusing to give full credit to the testimony of the three subscribing witnesses.
It has also been held that the condition and physical appearance of a questioned document
constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances,
may help in determining whether it is genuine or forged. Subscribing witnesses may forget or
exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only half
truths to mislead the court or favor one party to the prejudice of the other. This can not be said of the
condition and physical appearance of the questioned document itself. Both, albeit silently, will reveal
the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing. For this reason,
independently of the conflicting opinions expressed by the handwriting experts called to the witness
stand by the parties, we have carefully examined and considered the physical appearance and
condition of the original and two copies of the questioned will found in the record particularly the
signatures attributed to the testator and We have come to the conclusion that the latter could not
have been written by him.
Upon the face of the original and two copies of the contested will (Exhibits A, E and K) appear a total
of six alleged signatures of the testator. They are all well written along a practically straight line,
without any visible sign of tremor or lack of firmness in the hand that wrote them. In fact, in the
respects just adverted to, they appear better written than the unquestioned signatures, of attesting
witnesses Gandionco and Cabiluna, inspite of the fact that on the date of the alleged execution of
the will (May 17, 1945) the testator was considerably older and in a much poorer physical condition
than they. According to the evidence, the testator was then a sick man, eighty-two years old, with the
entire left half of his body paralyzed since six years before, while the oldest attesting witness
(Cabiluna) was around sixty-five years of age and Leonardo and Gandionco were only forty-four and
forty-five years old respectively, and were all in good health. Despite the obviously very poor

physical condition of the testator, Leonardo claims that he signed the alleged will unaided, writing his
name thereon slowly but continuously or without interruption, and that, on the same occasion, he
signed his name several times not only on the original of the will and its copies but also on the
original and several copies of the alleged confirmatory sale Exhibit F-1 and on his residence
certificate. Considering all the attendant circumstances, we agree with the lower court that Vito
Borromeo could not have written the questioned signatures.
In view of what has been said heretofore, We find it unnecessary to examine and consider in detail
the conflicting testimony of the handwriting experts presented by the parties: Martin Ramos by the
proponents of the will, to sustain the genuineness of the questioned signatures, and Felipe Logan
and Jose G. Villanueva, by the oppositors, to prove that said signatures are forgeries. We shall limit
ourselves in this connection to quoting with approval the following portion of the appealed decision:
What the Court finds to be a weakness in the conclusions of Martin Ramos, based on his
comparative examination of the questioned and standard signatures of Vito Borromeo, is his
apparent assumption that all the signatures were made by Vito Borromeo under equality or
similarity of circumstances, that is, that in all instances Vito Borromeo had normal use of both
of his hands, the right and the left. He failed to take into account that when Vito Borromeo
allegedly affixed those signatures on May 17, 1945 on Exhibits 'A', 'E', and 'K' the left portion
of his body, including the left hand, was already paralyzed, and Vito Borromeo was
represented to have written his name alone by himself and unaided. Maybe, if he was
previously apprised of those circumstances, he would hesitate to make the conclusion that
those flawless signatures reading Vito Borromeo, written straight and in a form as good as, if
not better than, the signatures of three much younger attesting witnesses, were positively in
the handwriting of the 82-year old, ailing, and paralytic Vito Borromeo. The Court
consequently, finds itself not disposed to adopt his conclusions, but on the contrary is
inclined toward the views of the other two experts witnesses, Felipe Logan and Jose G.
Villanueva.
As stated at the outset, the contested will is claimed to have been signed and thumbmarked by the
testator. An examination of the thumbmarks, however, readily shows that, as the lower court found,
the same are "glaringly far from being distinct and clear"; that "they are not a possible means of
identification" nor can "they possibly be identified to be those of Vito Borromeo, or for that matter, of
any other person whatsoever". It is, therefore, obvious, that they are of little use in the resolution of
the issue before Us.
We shall now consider the appeal, taken by the oppositors and the Republic of the Philippines from
that portion of the decision where the lower court declined to decide with finality the question of who
owns the thirteen parcels of land subject-matter of the confirmatory sale Exhibit F-1 and whether or
not they should be included in or excluded from the inventory of properties of the Estate of the
deceased Vito Borromeo.
It appears that on February 11, 1954 Tomas, Amelia, and Fortunato Borromeo, through counsel, filed
a motion for the exclusion from the inventory of the Estate of the thirteen lots therein mentioned, with
a total area of 2,348 square meters, claiming that the same had been sold by the deceased Vito
Borromeo during his lifetime to the Cebu Arcade, T. L. Borromeo y Cia. This motion for exclusion
was denied by the lower court in its order of July 16, 1954, and the ruling was reiterated in the
appealed decision "for the same reasons and considerations" upon which it rejected the probate of
the will. The ruling on the matter, however, was expressly made provisional in nature.

We believe, and so hold, that the resolution of the lower court on this matter is correct because said
court, acting in its capacity as a probate court, had no jurisdiction to determine with finality the
question of ownership involved. That such matter must be litigated in a separate action has been the
established jurisprudence in this jurisdiction (Ongsinco vs. Borja, L-7635, July 25, 1955; Mallari vs.
Mallari, L-4656, February 23, 1953; Garcia vs. Martin, G.R. No. L-9233, June 29, 1957; Cordova vs.
Ocampo, 73 Phil. 661; Pascual vs. Pascual, 73 Phil. 561 and others), except where a party merely
prays for the inclusion or exclusion from the inventory of any particular property, in which case the
probate court may pass upon provisionally, the question of inclusion or exclusion, but without
prejudice to its final determination in an appropriate separate action (Garcia vs. Garcia, 67 Phil. 353;
Marcelino vs. Antonio, 70 Phil. 388; Guinguing vs. Abuton, 48 Phil. 144, 147).
In view of all the foregoing, the decision appealed from is affirmed, with costs.
EN BANC
G.R. No. L-19142

March 5, 1923

In the matter of the estate of Mariano Corrales Tan, deceased.

FLAVIANA SAMSON, petitioner-appellee,
vs.
VICENTE CORRALES TAN QUINTIN, oppositor-appellant.
Marcaida, Capili and Ocampo for appellant.
Epimaco Molina for appellee.
OSTRAND, J.:
This is an appeal from an order of the Court of First Instance of Manila admitting to probate a
document alleged to be the last will and testament of the deceased Mariano Corrales Tan. There is
no direct evidence as to the interest of the oppositor-appellant in the estate in question, though it
may, perhaps, be inferred from the testimony of his wife Maximina Ong that he is the son of the
deceased.
In his answer to the petition for probate he alleges, in substance, that the will is incomplete and
fraudulent and does not express the true intent of the testator; that the testator acted under duress
and under undue influence, and that at the time of the execution of the will he was not of sound and
disposing mind.
We do not think the opponent has succeeded in proving any of his allegations. There is no evidence
whatever showing that the testator acted under duress or undue influence and the only question of
fact which we need consider is whether the testator was of sound and disposing mind when the
document in question was executed.
Upon this point the testimony of Dr. Tee Han Kee, the attending physician, as a witness for the
opposition, is to the effect that the deceased was suffering from diabetes and had been in a
comatose condition for several days prior to his death. He died about eight or nine o'clock in the
evening of December 26, 1921, and the will is alleged to have been executed in the forenoon of the
same day. Counsel for the appellant, in his well-prepared brief, argues ably and vigorously
that coma implies complete unconsciousness, and that the testator, therefore, could not at that time

have been in possession of his mental faculties and have executed a will. There are, however,
varying degrees of coma and in its lighter forms the patient may be aroused and have lucid intervals.
Such seems to have been the case here. Doctor Tee Han Kee, the opponent's principal witness, who
visited the deceased in the evening of December 25th, says he then seemed to be in a state
of coma and that in the forenoon of December 26th, when the doctor again visited him, he was in
"the same state of coma." Maximina Ong, the wife of the opponent, the only other witness for the
opposition, states that on December 26th the deceased could not talk and did not recognize anyone.
But all the witnesses presented by the petitioner, five in number, testify that the deceased was
conscious, could hear and understand what was said to him and was able to indicate his desires.
Four of these witnesses state that he could speak distinctly; the fifth, Velhagen, says that the
deceased only moved his head in answer to questions.
That the deceased was in an exceedingly feeble condition at the time the will was executed is
evident, but if the witnesses presented in support of the petition told the truth there can be no doubt
that he was of sound mind and capable of making his will. And we see no reason to discredit any of
these witnesses; the discrepancies found between their respective versions of what took place at the
execution of the document are comparatively unimportant and so far from weakening their testimony
rather lend strength to it by indicating the absence of any conspiracy among them.
As against their testimony we have only the testimony of Maximina Ong and Dr. Tee Han Kee. The
former is not a disinterested witness. As to the testimony of the latter it is sufficient to say that mere
professional speculation cannot prevail over the positive statements of five apparently credible
witnesses whose testimony does not in itself seem unreasonable.
There is no direct evidence in the record showing that the publication of the time and place of the
hearing of the petition for probate has been made as provided for in section 630 of the Code of Civil
Procedure and the appellant argues that the court below erred in admitting the will to probate without
proof of such publication. This question not having been raised in the court below will not be
considered here.
Section 630 of the Code of Civil Procedure, speaking of hearings for the probate of wills, also
provides that "At the hearing all testimony shall be taken under oath, reduced to writing and signed
by the witnesses" and the appellant maintains that the transcript of the testimony of the witness Dr.
N. M. Saleeby, not having been signed by the witness, the testimony should have been excluded.
There is no merit in this contention. When, as in this case, the testimony is taken by the
stenographer of the court and certified to by him, the provision quoted can only be regarded as
directory and a failure to observe the provision will not render the testimony inadmissible. (Reese vs.
Nolan, 99 Ala., 203.)
The order appealed from is affirmed, with the costs against the appellant. So ordered.
EN BANC
G.R. No. L-41947

January 16, 1936

In re Will of the deceased Silvestra Baron.

VIVENCIO CUYUGAN, petitioner-appellant,

vs.
FAUSTINA BARON and GUILLERMO BARON, oppositors-appellees.
Pedro Abad Santos, Quirino Abad Santos, Francisco M. Ramos, and Aurelio Pineda for appellant.
Arturo Joven for appellee Guillermo Baron.
Vicente J. Francisco and Jesus E. Blanco for appellee Faustina Baron.
BUTTE, J.:
This is an appeal from a judgment of the Court of First Instance of Pampanga denying all the petition
of Vivencio Cuyugan for the probate of the will of Silvestra Baron.
The petition which was filed on February 1, 1933, recites among other things that Silvestra Baron
died on January 30, 1933. The death certificate recites that she was eighty-six years of age and died
of heart failure. The petition further recites that she left an estate exceeding in value the sum of
P80,000 which she disposed of by will dated December 17, 1932, that she died single without forced
heirs.
The will appointed Vivencio Cuyugan, her nephew, as executor and contains the following
paragraphs which dispose of her estate:
Que despues de pagados todos los gastos quese han de ocasioner desde que me caiga
enferma hasta el entiero de mi cadaver, los bienes y propiedades que he de dejar se
repartiran buenamente y en partes iguales mis hermanos Ilamados Guillermo Baron, con
exception de todo el dinero en metalico y mi casa de materiales fuertes construida en el
barrio del Pilar, San Fernando, Pampanga que actualmente habita mi hermano Guillermo
Baron, porque estos los doy de una manera absoluta como herencia de mi sobrino Vivencio
Cuyugan.
Que a la muerte de mis hermanos Guillermo y Faustina Baron, todos los terrenos que en
virtud de este test tamento les dejo en herencia, los doy herencia a mi so brino VIVENCIO
CUYUGAN, por lo que, encargo y prohibo a mis citados hermanos Guillermo y Faustina
Baron, que graven o pongan cualquiera clase de obligacion sobre los bienes que les dejo en
herencia.
The original of this will is signed "Silestra On" and the copy is signed "Silestra Baron" (t.s.n. pp. 170,
171). Both copies are written in the Pampanga dialect and consist of one sheet and are witnessed in
due form by Vicente David, Valeriano Silva and Zacarias Nuguid (known to the testator).
The petition for probate recites:
9. That on the date of the execution of said will, that is to say, on December 17, 1932, the
said testatrix was about 80 years old, more or less, and was found and disposing mind, and
not acting under duress, menace, fraud, or undue influence, and was in every respect
competent to dispose of her estate by will.
The amended oppositions of Guillermo Baron, brother of the deceased, and Faustina Baron, sister
of the deceased, allege in substance first, that at the time of the execution of the alleged will,
Silvestra Baron was mentally and physically incapacitated for the execution of a will; and, second,
that her signature and alleged consent to the said will was obtained and the attorney who prepared
the document and the witnesses who affixed their signatures thereto.

Upon the issues thus drawn by the pleadings of the judge of the Court of First Instance, after and
extended trial and a full consideration of the evidence, came to the following conclusion:
Opinamos que influyeron indebidamente e impropia mente en la voluntad ya debilitada de
doa Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan
y Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron
impedida de presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia
Municipal, Zacarias Nuguid; la oposicion de Regino Cuyugan a que ella firmase el
documento preparado por el abogado Narciso declarando que no habia otorgado
testamento el dia anterior a su translado forzoso a San Fernando para que no se hisciese
firmar documento analogo y la presencia del cabo Morales y del algunos otros soldados, no
solamente cuando se otorgo el testamento, sino cuando ella fue transladada de casa contra
su voluntad y cuando se le hizo firmar el Exhibit 10, y por lo tanto, que ella no gozo de una
completa libertad para disponer de sus bienes en testamento, o con pleno conocimiento del
alcance de su contendido. Solo asi se explica el que ella haya dejado toda la propiedad de
sus bienes a sus sobrinos, con quienes habia estado en pleito, con pretericion de sus
hermanos, especialmente de la opositora Faustina Baron, con quien habia conviviendo
durante 40 aos . . . .
Sentadas las premisas de hecho y de derecho que an teceden, el Juzgado no puede menos
de llegar a la con ser legalizado como el testamento y ultima voluntad de la finada Silvestra
Baron. Cuando existen pruebas suficien tes para concencer al Juzgado de que se ha
ejercido in fluencia indebida en el animo de la testadora y que como resultado de dicha
influencia indebida esta ha otorgado el testamento de la voluntad de la supuesta testadora
sino de los que sobre ella ejercieron la influencia indebida.
An instrument purporting to be a will executed and witnessed in accordance with the formalities
required by the statute is entitled to the presumption of regularity. But the burden of the evidence
passed to the proponent when the oppositors submit credible evidence tending to show that the
supposed testator did not possess testamentary capacity at the time or that the document was not
the free and voluntary expression of the alleged testator or that the will, for any other reason, is void
in law. The finding that the will was executed under due influence or by the fraud of another
presupposes testamentary capacity. In the present case the learned trial judge refused the probate
of the alleged will on the ground that it was executed under the due influence of other persons and
we think the record warrants his findings in this respect. The trial court also made findings of fact
tending to show actual lack of testamentary capacity of Silvestra Baron and we have preferred to
base our conclusion on that finding. The testamentary capacity of Silvestra Baron at the time she
executed the said purported will.
The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were immediately
called in. By reason of her advanced age and the gravity of her illness, she was unable to do
anything for herself. Her grandniece, Epifania Sampang, who reached the house about one hour or
so after the old lady's collapse, telephoned a message to Vivencio Cuyugan at San Fernando, some
fourteen kilometers distant, that Silvestra had an attack and was in a serious condition and
requested that a doctor be sent immediately, Doctor Teopaco and a nurse arrived at about ten
o'clock and treated the patient with a plaster on her back and ice packs over her heart and the doctor
gave her a hypodermic injection in the arm. As the doctor and the nurse were leaving, Vivencio
Cuyugan, with an attorney and three witnesses, entered the house prepared to obtain the will of
Silvestra Baron. Neither the doctor nor the nurse were presented as witnesses by the proponent.
Epifania Sampang, admittedly an intelligent young woman, who was the first to reach Silvestra
Baron and remained throughout the morning attended to her, testified that when she reached the

house she found her grandaunt lying in bed, very pale and unconscious; that she called to her but
she did not answer and only groaned; that her mouth was twisted and her lower lip swollen. She
went out to call a doctor but all the doctors in Magalang were out whereupon she telephoned as
stated to San Fernando for a doctor.
The subscribing witnesses stated that it was their belief that Silvestra understood the alleged will
which she signed, but all of them admitted that although they were in her house about two hours not
one of them exchanged a single word of conversation with Silvestra. The subscribing witness
Zacarias Nuguid testified in part as follows:
P. Desde que los tres abogados Abad Santos, Silva y David y usted y Vivencio Cuyugan se
acercaron a la cama de la finada, hasta que tanto ella como usteded firmaron el testamento,
ha pronunciado ella alguna palabra? ha dicho ella algo o no? R. No recuerdo.
P. Pero, por lo que usted recuerda, ha dicho ella algo o no ha dicho nada? R. No
recuerdo.
P. Usted ha dicho algo a ella? R. Nada.
P. El seor Quirino Abad Santos le ha dicho algo a ella? R. Nada. No he oido.
P. Los otros abogados Silva y David le han dicho algo ? R. No he oido.
P. Ella ha dicho algo a cualquiera de osos tres o a los abogados? R. No he oido que
dijera algo.
P. Si ella hubiese dicho algo a los abogados, asi como los abogados hubieran hablado a
ella, usted hubiera oido porque usted estaba cerca, no es verdad? R. Si seor, hubiera
podido oir.
P. Cuando el senor Silva termino de leer el testamento, dijo algo la vieja? R. No he oido
que dijera algo.
There is no evidence that Silvestra Baron took any active part in the preparation of the alleged will
except that when she was asked if she wished to include her sister Faustina in the will she said
"Yes" in Pampanga. There is no affirmative evidence that she understood the document when it was
read to her. The person who read the will to her testified as follows:
R. Despues de leido el testamento, tuve que entregarlo a doa Silvestra, y lo miro algun
rato.
P. Y ella, efectivamente, cogio el testamento de manos de usted? R. Lo entregue a sus
manos.
P. Y ella lo cogio con sus manos? R. Si seor.
P. Y lo tuvo en sus manos leyendo, mirando? R. Mirandolo asi.
P. Pero, no lo leia? R. Lo estuvo mirando por mucho tiempo asi.

Standing at her bedside was the attorney with three witnesses and the chief beneficiary, Vivencio
Cuyugan, and yet so far as this record shows, not a word was exchanged between any of them and
the suffering old woman. We don't know what drug the doctor administered but it is clear to us from
the evidence that in her dazed physical and mental condition she had no adequate understanding of
what she was doing at that time. She could not even sign her name to the original will properly or
correctly, and when this defect was noted by one of the astute subscribing witnesses, he suggested
that they have her sign another copy (t.s.n. page 109) which was done.
She never saw the alleged will at any time again prior to her death which occurred forty-four days
later. It was immediately taken away by an attorney who kept it in his possession alleging that she
had instructed him to keep it secret. There is, however, credible evidence in the record that before
her death she had denied to several persons that she made any will.
This belief on her part that she had not made any will explains her failure to do any act of revocation
in the forty-four days during which she lingered in this life. The doctrine that where the testator has
had an opportunity to revoke his will subsequent to the operation of an alleged undue influence upon
him but makes no change in it, the courts will consider this fact as weighing heavily against the
testimony of undue influence, has no application to cases in which there has been an initial lack of
testamentary capacity. It has no application, moreover, where from the day of execution until the
death of the testator his mental condition is such that he cannot judge the propriety of revoking the
will. Nor obviously does it apply to a case where the alleged testator harbors the belief that he had
not executed the will in question.
In view of the premises, the judgment appealed from is affirmed with costs against the appellant.
Hull and Imperial, JJ., concur.

Separate Opinions
MALCOLM, J., concurring:
The main issue in this case, as I see it, is whether or not Silvestra Baron, a woman of advanced
years and in a critical state of health, possesses testamentary capacity to make a will. This was an
issue of fact, and resolving it the trial judge reached the conclusion that the testatrix was not of
disposing mind. My review of the evidence does not permit me to say that in thus deciding the trial
judge was wrong. As was expected, in a case of this character, the oral testimony was conflicting,
but in resolving the credibility of the witnesses, a judge as experienced as Judge Hermogenes
Reyes was in a much better position to do so than we are. However, I may state that I have been
considerably influenced by the testimony of the parish priest, certainly a disinterested party, who
stated on the witness stand that in response to his question if she had made a will, Silvestra Baron
answered: "There is no will, Father." But from the premise of lack of testamentary capacity, it does
not necessarily follow that anything of an unprofessional nature should be imputed to the lawyer who
prepared the will and the other lawyers who acted as attesting witnesses. The first named is the
justice of the peace of San Fernando, Pampanga, and has an excellent reputation, which is not
lessened in the least by his acts in this case, and the last named are reputable members of the bar.
For these reasons and to this extent, I concur.

Vickers, and Recto, J., concur.

VILLA-REAL, J., dissenting:
The lower court refused to probate the will of Silvestra Baron on the ground that when she executed
it she was under the undue influence of other persons; but the majority of this court, while admitting
the existence of such undue influence, prefers to base its refusal on the ground that she lacked
testamentary capacity at the time of the execution of said will.
The facts constituting the undue influence in the opinion of the lower court are summarized in its
decision as follows:
Opinamos que influyeron indebitamente e impropiamente en al voluntad ya debilitada de
doa Silvestra Baron por su avanzada edad la presencia de sus sobrinos Vivencio Cuyugan
y Regino Cuyugan durante el otorgamiento del Exhibit A; la ausencia de Faustina Baron
impedida de presenciarlo por algunos soldados de la Constabularia y el Jefe de Policia
Municipal, Zacarias Nuguid; la oposicion de Regino Cuyugan a que ella firmase el
documento preparado por el abogado Narciso declarando que no habia otorgado
testamento el dia anterior a su translado forzoso a San Fernando para que no se hiciese
firmar documento analogo y la presencia del cabo Morales y de algunos otros soldados, no
solamente cuando se otorgo el testamento, sino cuando se le hizo firmar el Exhibit 10, y, por
lo tanto, que ella no gozo de una completa libertad para disponer de sus bienes en
testamento, o con pleno conocimiento del alcance de su contenido. Solo asi se explica el
que ella haya dejado toda la propiedad de sus bienes a sus sobrinos, con quienes habia
estado en pleito, con pretericion de sus hermanos, especialmente de la opositora Faustina
Baron, con quien habia estado conviviendo durante 40 aos . . ..
And the facts constituting lack of testamentary capacity are condensed in the opinion of the majority
as follows:
The evidence shows that the same morning when Silvestra Baron signed the alleged will she
suffered a physical collapse of such a serious nature that a physician and a nurse were
immediately called in. By reason of her advanced age and the gravity of her illness, she was
unable to do anything for herself. Her grandniece, Epifania Sampang, who reached the
house about an hour or so after the old lady's collapse, telephoned a message to Vivencio
Cuyugan at San Fernando, some fourteen kilometers distant, that Silvestra had had an
attack and was in a serious condition and requested that a doctor be sent immediately.
Doctor Teopaco and a nurse arrived at about ten o'clock and treated the patient with a
plaster on her back and ice packs over her heart and the doctor gave her a hypodermic
injection in the arm. As the doctor and the nurse were leaving, Vivencio Cuyugan, with an
attorney and three witnesses, entered the house prepared to obtain the will of Silvestra
Baron. Neither the doctor nor the nurse were presented as witnesses by the proponent.
Epifania Sampang, admittedly an intelligent young woman, who was the first to reach
Silvestra Baron and remained throughout the morning and attended to her, testified that
when she reached the house she found her grandaunt lying in the bed, very pale and
unconscious; that she called to her but she did not answer and only groaned; that her mouth
was twisted and her lower lip swollen. She went out to call a doctor but all the doctors in
Magalang were out whereupon she telephoned as stated to San Fernando for a doctor.
Examining now the facts which according to the findings of the lower court constituted undue
influence, we have in the first place the presence of the testatrix nephews Regino Cuyugan and
Vivencio Cuyugan. There was nothing either in the presence of Vivencio Cuyugan or of that of

Regino Cuyugan which could have compelled Silvestra Baron to make Vivencio Cuyugan her most
favored beneficiary in her will. There is certainly nothing ill in nephews being present at the making
of a will. The evidence shows that these two Cuyugans just stood by while the will was being read to
the testatrix and when it was presented to her for her signature.
The absence of Faustina Baron, the sister of Silvestra Baron, in whose company the latter was
living, who, according to the witnesses for the opponents, but denied by the witnesses for the
proponent, while the will was being made, was prevented to come into the house by some
Constabulary soldiers and the chief of police of San Fernando, Pampanga, Zacarias Nuguid, is
another fact mentioned by the lower court as constituting undue influence. Even granting that
Faustina Baron was prevented to come to the house while Silvestra Baron was making her will, I fail
to see how such act on the part of the Constabulary soldiers could have unduly influenced the
testatrix in the making of her will.
The presence of some Constabulary soldiers outside the house and in the kitchen is also one of the
reasons which led the lower court to conclude that undue influence was used in making Silvestra
Baron sign her will. Silvestra Baron was not an ignorant old lady. She was a landed proprietress,
who according to the custom prevailing in the Philippine Islands, managed her won property, and in
o doing she had to deal with many farm laborers in such a way as to make them respect her. The
presence of Constabulary soldiers in towns and barrios is not a rare occurrence, and country people
are accustomed to seeing them around whether on patrol or quarantine duty. There is, therefore,
nothing in the mere presence of the Constabulary soldiers in the house of Silvestra Baron at the time
of making her will which could have influenced her. Besides, the testatrix must have known the
presence of such soldiers before she collapsed, because they had been there investigating the
assault and robbery committed against her a few days before. There is no evidence that said
soldiers were brought to the house for the purpose of guarding the making of the will.
The fact that the chief of police of San Fernando, Zacarias Nuguid, was brought by Attorney Quirino
Abad Santos, whom the old lady had requested to prepare her will, had no more significance than
the bringing of the other attorneys to witnesses to the will. There is certainly no evil in making a chief
of police a witness to a will, nor is there any law disqualifying him to be such witness.
The alleged attitude of Regino Cuyugan in trying to prevent her aunt Silvestra Baron on December
18, 1932, the day following the making of her will, to sign a document prepared by Attorney Jose A.
Narciso revoking her said will, even if it were true, could in no way have influenced her in the making
of said will which took place the day previous.
The lower court also found that the will of Silvestra Baron was weakened by old age. In this
connection I prefer to reproduce here what is said in 68 Corpus Juris, 440-442:
Old age. A person possessing the requisites of testamentary capacity is not incapacitated
from making a will by old age, although his advanced years to be accompanied by infirmity of
mind and body. Nor is he incapacitated by failing a memory, vacillating judgment,
childishness, slovenliness in dress, eccentricities or peculiarities in habit or speech, and even
delusions or hallucinations if they do not affect the execution of the will, and he is not limited
to conventional methods of disposition. The will is not valid where an aged person is so
enfeebled mentally as not to understand what he is doing.
If undue influence had been used to compel Silvestra Baron to make the will on the 17th of
December, 1932, she could have changed her said will after all the circumstances which according
to the court below constituted said undue influence had disappeared. After the making of her will
Silvestra Baron was left alone in her house in the company of her nephew Regino Cuyugan, her

grandniece Epifania Sampang and her sister Faustina Baron. Upon gaining access to the house and
learning that her sister Silvestra Baron had signed some papers, Faustina Baron started immediately
to look for Attorney Jose A. Narciso, and with him went to the house of Attorney Valeriano Silva who
upon being questioned informed the latter that the old lady had signed a will. Thereupon efforts were
made to have the will revoked, and to this effect Attorney Jose A. Narciso prepared a document
which the old lady refused to sign as we have already stated. On the 20th of December, 1932, the
old lady was taken by her brother Guillermo Baron, one of the opponents, to her own house in San
Fernando, Pampanga, occupied by said Guillermo, and there she stayed for forty days before her
death. During that time she signed on two different occasions two documents, one ratifying the
making of her will and the other appointing her nephew Vivencio Cuyugan her attorney in fact. An old
lady who after making her will remains in the house of her sister, free from any outside influence,
refuses to sign a document purporting to be a revocation of her will, lives for forty days in her own
house in San Fernando, Pampanga, in the company of her brother, and there signs two important
documents, cannot certainly be said to have been unduly influenced when the made her will.
In Brownlie vs. Brownlie (93 A.L.R., 1048), the Supreme Court of Illinois said the following:
. . . The undue influence which will invalidate a will must be directly connected with the
execution of the instrument, be operating when the will was made, and thereby prevent the
testator from exercising his own wish and will in the disposition of his estate.
(Flanigon vs. Smith, 337 Ill., 572; 169 N.E., 767; Chaney vs.Baker, 304 Ill., 362; 136, N.E.,
804; Goff vs. Gerhart, 316 Ill., 513; 147 N.E., 419; McGrady vs. McGrady, 298 Ill., 129; 131
N.E., 251.) The fact that the beneficiaries of a will are those by whom the testator was
surrounded and with whom he stood in confidential relationship at the time of executing his
will is no ground for inferring undue influence. (Michael vs. Marshall, 201 Ill., 70; 66 N.E.,
273; Rutherford vs. Morris, 77 Ill., 397.) The influence must be directed towards procuring
the will in favor of certain parties and must be such as to destroy the testator's freedom of
will and purpose. (Pond vs. Hollett, 310 Ill., 31; 141 N.E., 403; Gregory vs. Richey, 307 Ill.,
219; 138 N.E., 669; Blackhurst vs. James, 304 Ill., 219; 136 N. E., 754, Snellvs. Weldon, 239
Ill., 279; 87 N.E., 1022.) Proof of undue influence must be consistent with the exercise of
undue influence and also be inconsistent with its absence.
(Cunningham vs. Dorwart, supra; Compher vs.Browning, 219 Ill., 429; 76 N.E., 678; 109 Am.
St. Rep., 346.)
In the case of Torres and Lopez de Bueno vs. Lopez (48 Phil., 772), this court in an opinion written
by Justice Malcolm, defines undue influence as follows:
Undue influence as used in connection with the law of wills, may be defined as that which
compels the testator to do that which is against the will from fear, the desire of peace, or from
other feeling which he is unable to resist.
In Applehans vs. Jurgenson (67 A.L.R., 857), the Supreme Court of Illinois said:
The undue influence which will avoid a will must be directly connected with the execution of
the instrument and operate at the time it is made. The influence must be specially directed
toward procuring the will in favor of a particular party or parties, and it must be such as to
destroy the freedom of the testator's will and render the instrument obviously more the
offspring of the will of another or others that of his own. (Ughettivs. Ughetti, 334 Ill., 398; 166
N.E., 90; Ray vs. Koenigsmarck, 329 Ill., 588; 161 N.E., 124; Farmer vs.Davis, 289 Ill., 392;
124 N.E., 640; Hurd vs. Reed, 260 Ill., 154; 102 N.E., 1048; Larabee vs. Larabee, 240 Ill.,
576; 88 N.E., 1037; Snell vs. Weldon, 239 Ill., 279; 87 N.E., N.E., 1022; Wickes vs. Walden,
228 Ill., 56; 81 N.E., 798; Woodman vs. Illinois Trust & Sav. Bank, 211 Ill., 578; 71 N.E.,

1099; Roe vs. Taylor, 45 Ill., 485.) The evidence failed to establish these requirements. The
law does not require that a testator, in making disposition of his property, shall be humane or
even just. If he possesses the requisite mental capacity, he has the right to make an unequal
distribution of his property among his heirs or to give it entirely to strangers. (McGrady vs.
McGrady, 298 Ill., 129; 131 N.E., 251.)
We have seen that none of the facts which the lower court found to constitute undue influence is
such as to cause fear, desire of peace, or any other feeling which Silvestra Baron was unable to
resist.
As to the effect of an opportunity of revocation upon an alleged undue influence, we read in 28
R.C.L., 151, the following rule:
106. Opportunity of revocation. Where the testator has had an opportunity to revoke his
will subsequent to the operation of an alleged undue influence upon him, but makes no
change in it, the court as a general rule considers the effect of the testimony of the undue
influence as destroyed.
From the foregoing definition of undue influence, and the existence of an opportunity to revoke
without taking advantage of it, I come to the conclusion that when Silvestra Baron signed her will she
was not under any undue influence, and that if she had ever been in such during the forty days
which she survived the making of said will. The fact that not only she had not done so but that she
made a power of attorney in favor of her nephew Vivencio Cuyugan, the chief beneficiary under her
will, and ratified the making of said will, is conclusive proof that no undue influence had been exerted
to compel her to sign her will.
Another fact which led the trial court to conclude that undue influence was exercised upon Silvestra
Baron is that in her will she left most of her property to her nephews leaving nothing to her brother
and sister Faustina Baron except a life usufruct.
In the case of Pecson vs. Coronel (45 Phil., 216), this court said the following:
Although family ties in this country are very strongly knit, the exclusion of relatives, who are
not forced heirs, from the inheritance is not an exceptional case. The inhabitants of the
Archipelago do not appear to be averse to the freedom to make a will enshrined by article
783 of the Civil Code, which has been in force in the Philippines since the year 1889. But
even if the appointment of a beneficiary do not seem to be the most usual and ordinary
because the beneficiary is not a relative of the testatrix who has relatives by blood, this alone
will not render the appointment void per se.
In 68 Corpus Juris, 452, we read the following:
The fact that a will may be unnatural, unfair, or unjust creates of itself no presumption that
the testator was incompetent at the time of its execution. No presumption of mental
incapacity arises from the fact that the will makes an unequal distribution of property among
the next of kin, or that it gives property to persons other than the natural objects of the
testator's bounty. Any departure form the usual course in which a person prompted by
ordinary instincts and natural impulses would have his property go is presumed to have been
made by the testator because of reasons rationally conceived which were satisfactory to him,
and on the probate of a will the fact the will is unnatural does not shift the burden to the
proponent. According to some decisions, however, where a will is an unnatural one it is the

duty of the proponent on the probate of the will to give some reasonable explanation of its
unnatural character.
In the present case there is evidence to the effect that Silvestra Baron trusted her nephews,
specially Vivencio Cuyugan, more than her brother Guillermo Baron and her sister Faustina Baron.
Faustina Baron herself testified that after the assault and robber on December 9, 1932, Silvestra
Baron entrusted to her nephews Ventura Cuyugan and Vivencio Cuyugan the combination of the
safe where she kept her valuables and documents and gave them the duplicates of the keys to the
interior compartments and drawers (pp. 254, 255, t.s.n.). That Silvestra Baron did not trust her sister
Faustina Baron may be inferred from the latter's own testimony on page 291 (t.s.n.) to the effect that
before the 17th of December, 1932, she did not dare to suggests to her sister Silvestra Baron to
make a will because the latter did not like to hear anything about the matter, but she told Faustina
that she had already made her will long time ago. If to this we add the fact that a complaint was
signed by Silvestra Baron against her sister Faustina and the latter's son Emilio Lacson for the
assault and robbery committed against her, then we have a full explanation why in her will Silvestra
Baron bequeathed to her nephews almost all her property leaving to her brother and sister nothing
but a life usufruct.
Passing now to the question of lack of testamentary capacity or disposing mind, which is the ground
preferred by the majority opinion on which to base its rejection of the probate of the said will, we find
in the first place the alleged failure of the proponent to call as witnesses the doctor and the nurse
who attended Silvestra Baron immediately after she collapsed, apparently inferring that had they
testified their testimony would have been unfavorable to the claim of sanity. The burden of proving
sanity, which falls on the shoulders of the proponent of a will, was discharged by Vivencio Cuyugan
when he put to the witness stand Attorney Quirino Abad Santos, the drawer of the will, and attorneys
Vicente T. David and Valeriano Silva, and the chief of police of San Fernando, Pampanga, Zacarias
Nuguid, the three witnesses who signed the will. They testified unanimously that when testatrix
signed her will she was of sound mind, judging from her appearance and the manner she signed it.
"An attesting witness to a will may base an opinion of the testator's mental capacity upon his
appearance at the time of executing the will. (Brownlie vs. Brownlie, 93 A.L.R., 1041.) This testimony
was sufficient to make and did make a prima facie case, (68 Corpus Juris, 450), and the burden of
going forward to show testamentary incapacity having shifted to the contestants (68 Corpus Juris,
451). It was not therefore the duty of the proponent to call the doctor and the nurse who attended
Silvestra Baron when she collapsed to show that she was of sound mind but of the contestants to
show incapacity.
That Silvestra Baron did not become unconscious as the result of her fall is shown by the very
testimony of Epifania Sampang who said, referring to her grandaunt: "Estaba inconsciente, lanzaba
quejidos, decia: 'Faustina, Faustina'; mandaba buscar a la vieja Faustina." If the testatrix was really
unconscious as the result of said fall she would not have been able to call her sister Faustina by her
name, nor could she have given orders to locate her. Because her grandaunt did not answer her
when she called her, Epifania Sampang imagined that she was unconscious. Thus, all the evidence
concerning the unconscious state of Silvestra Baron in the morning she made her will consisted of
the testimony of Epifania Sampang alone. The doctor who attended Silvestra Baron after her fall was
the one qualified to testify as to her mental condition and not her grandniece. The contestants whose
duty it was to call said doctor to prove unconsciousness failed to do so.
In the case of Torres and Lopez de Bueno vs. Lopez, supra, this court said:
On January 3, 1924, when the testator, Tomas Rodriguez, made his will, he was 76 years
old, physically decrepit, weak of intellect, suffering from a loss of memory, had a guardian of
his person and his property, and was eccentric, but he still possessed that spark of reason

and of life, that strength of mind to form a fixed intention and to summon his enfeebled
thoughts to enforce that intention, which the law terms "testamentary capacity." Two of the
subscribing witnesses testified clearly to the regular manner in which the will was executed,
and one did not. The attending physician and three other doctors who were present at the
execution of the will expressed opinions entirely favorable to the capacity of the testator.
Three other members of the medical profession expressed opinions entirely unfavorable to
the capacity of the testator and certified he was of unsound mind. Held: That Tomas
Rodriguez on January 3, 1924, possessed sufficient mentality to make a will which would
meet the legal test regarding testamentary capacity; that the proponents of the will have
carried successfully the burden of proof and have shown him of sound mind on that date;
and that it was reversible error on the part of the trial court not to admit his will to probate.
While it is true that in the present case no physician testified as to the condition of Silvestra Baron's
mind when she signed her will, we have however the testimony of three reputable attorneys to the
effect that judging from her appearance and the ways she acted when she signed her will she was of
sound mind. This was corroborated by the fact that when the next day Attorney Jose A. Narciso,
upon learning that she had made a will, he tried to make her revoked said will which she refused.
This in itself is an admission that she was of sound disposing mind. The very finding of the lower
court that Silvestra Baron was unduly influenced in the making of her will is an implied admission
that she possessed testamentary capacity.
The preponderance of evidence and the implied admission of the lower court show, therefore, the
when Silvestra Baron made her will she was of sound disposing mind.
From all the foregoing considerations, I come to the conclusion that Silvestra Baron made her will
free from any undue influence and in a sound disposing mind, and, therefore, said will should be
probated.
Avancea, C.J., Diaz and Goddard, J., dissent.
EN BANC
G.R. Nos. L-3272-73

November 29, 1951

MANUEL GONZALES, petitioner-appellant,

vs.
MANOLITA GONZALES DE CARUNGCONG, petitioner-appellee;
ALEJANDRO GONZALES, JR., and JUAN GONZALES, oppositors-appellants.
Claro M. Recto for petitioner and appellant.
Reyes, Albert, Agcaoili and Raf. L. Arcega for petitioner and appellee.
Emiliano Pamintuan and Felixberto M. Serrano for oppositors and appellants.
PARAS, C.J.:
On November 27, 1948, Manuel Ibarra Vda. de Gonzales (hereafter to be referred to as testatrix)
died at the age of about seventy-eight years, leaving five children, namely, Alejandro Gonzales,
Leopoldo Gonzales, Manolita Gonzales de Carungcong, and Juan Gonzales. The estate left by her
is estimated at P150,000.

On December 22, 1948, Manuel Gonzales filed in the Court of First Instance of Rizal a petition
(Special Proceeding No. 837) for the probate of an alleged will executed by the testatrix on
November 16, 1942 (Exhibit BManuel Gonzales), devising to Manuel Gonzales the greater portion
of the estate, without impairing the legitimes of the other children.
On December 31, 1948, Manolita G. de Carungcong filed in the same court a petition (Special
Proceeding No. 838) for the probate of another alleged will executed by the testatrix on May 5, 1945
(Exhibit 1Manolita G. Carungcong), leaving to Manolita G. de Carungcong the greater bulk of the
estate, without impairing the legitimes of the other children.
In his opposition filed on February 16, 1949, Alejandro Gonzales, Jr. sought the disallowance of the
wills executed on November 16, 1942, and May 5, 1945, on the ground that, assuming their validity,
they had been revoked by the testatrix in an instrument executed by her on November 18, 1948
(Exhibit 2Alejandro and Juan Gonzales), with the result that her estate should be distributed as if
she died intestate.
With the exception of Leopoldo Gonzales, the children of the testatrix filed mutual oppositions to one
or the other instruments tending to negative their respective positions.
After a joint hearing, the Court of First Instance of Rizal rendered a decision with the following
dispositive pronouncements:
All facts considered in the light of the evidence presented and in the manner in which the
witnesses testified the court concludes and holds:
First: That Exhibit B
Manuel Gonzales, though validly executed on November 16,
1942, was revoked by Exhibit 1Manolita G. Carungcong in accordance with the provisions
of section 623 of the Code of Civil Procedure.
Second: That Exhibit 2
Alejandro and Juan Gonzales being executed without the
knowledge and testamentary capacity of the testatrix and being contrary to the provisions of
section 618 of the Code of Civil Procedure, the said document is hereby declared null and
void.
Third: That Exhibit 1
Manolita G. Carungcong having been executed in
accordance with law the same is hereby declared as the true and last will and testament of
the deceased Manuela Ibarra Viuda de Gonzales, and said will is hereby admitted probate.
From this judgment petitioner Manuel Gonzales and oppositors Alejandro Gonzales, Jr. and Juan
Gonzales have appealed. The appeal as to Juan Gonzales was dismissed in view of his failure to
pay the proportionate share of the printing cost of the record on appeal.
In the parts material to the present appeal, the will executed by the testatrix on May 5, 1945, is of the
following form and tenor:
IKALABING-DALAWA. Na ang aking HULING BILIN AT TESTAMENTONG ito ay binubuo ng
PITONG (7) dahon o pagina na may bilang na sunud-sunod at ang bawa't dahon o pagina
ay mayroong tunay kong lagda o firma, gayon din ang lahat ng aking saksi o testigos.
SA KATUNAYAN ng lahat ng isinasaysay ko dito ay aking nilagdaan ito dito sa Imus, Kavite,
Filipinas ngayong ika-5 ng Mayo ng taong 1945, na nakaharap dito sa ating paglagda o

pagfirma ang tatlong saksi o testigos. At aking ding nilagdaan o pinirmahan ang tagilirang
kaliwa ng lahat at bawa't dahon o pagina nitong testamento kong ito sa harap ng lahat at
bawa't isang saksi o testigos at ang lahat at bawa't isa naman sa kanila ay nangagsilagda o
nagsifirma din dito bilang saksi ko sa harap ko at sa harap ng lahat at bawa't isa sa kanila, at
ganoon din silang mga saksi ko ay nangag-lagda o nagsi-firma sa tagilirang kaliwa ng lahat
at bawa't isa sa mga dahon o pagina nitong aking testamento.

(Sgd.) MANUELA Y. VDA. DE GONZALES

MANUELA IBARRA VDA. DE GONZALES

Mga Saksi o Testigos:

(Sgd.) BIENVENIDO DE LOS REYES

(Sgd.) TAHIMIK T. SAYOC
(Sgd.) LUIS GAERLAN

It is contended for the appellants that this will does not contain any attestation clause; that, assuming
the concluding paragraph to be the attestation clause, it is not valid because it is the act of the
testatrix and not of the witnesses, and because it does not state the number of sheets or pages of
the will.
In the very recent case of Valentina Cuevas vs. Pilar Achacoso, G.R. No. L-3497, decided May,
1951 * we sustained, finding a precedent in Aldaba vs. Roque, 43 Phil., 378, an attestation clause
made by the testator and forming part of the body of the will. Through Mr. Justice Bautista, we held:
The clause above quoted is the attestation clause referred to in the law which, in our opinion,
substantially complies with its requirements. The only apparent anomaly we find is that it
appears to be an attestation made by the testator himself more than by the instrumental
witnesses. This apparent anomaly, however, is not in our opinion serious nor substantial as
to affect the validity of the will, it appearing that right under the signature of the testator, there
appear the signatures of the three instrumental witnesses.
Instrumental witnesses, as defined by Escriche in his Diccionario Razobada de Legislacion,
y Jurisprudencia, Vol. 4, p. 1115, is on who takes part in the execution of an instrument or
writing" (in re will of Tan Diuco, 45 Phil., 807, 809). An instrumental witness, therefore, does
not merely attest to the signature of the testator but also to the proper execution of the will.
The fact that the three instrumental witnesses have signed the will immediately under the
signature of the testator, shows that they have in fact attested not only to the genuineness of
his signature but also to the due execution of the will as embodied in the attestation clause.
The attestation clause in question bears also similarity with the attestation clause in the will
involved in Aldaba vs. Roque, (43 Phil., 378). In that case, the attestation clause formed part
of the body of the will and its recital was made by the testatrix herself and was signed by her
and by the three instrumental witnesses. In upholding the validity of the will, the court said:

In reality, it appears that it is the testatrix who makes the declaration about the points in the
last paragraph of the will; however, as the witnesses, together with the testatrix, have signed
the said declaration, we are of the opinion and so hold that the words above quoted of the
testament constitute a sufficient compliance with the requirements of Act No. 2465.
Of course three of the Justices of this Court concurred in the result, "in the possibility that the
testator in the present case, or the person or persons who prepared the will had relied upon the
ruling laid down in the case ofAldaba vs. Roque, supra, and that it would now be unfair to reject the
present will when in its preparation a ruling of this Court has been followed." But the case at bar still
falls within this view, the will (Exhibit 1Manolita G. Carongcong) having been executed on May 5,
1945.
The attestation clause contained in the body of the will being thus valid, the statement in the
penultimate paragraph of the will hereinabove quoted as to the number of sheets or pages used, is
sufficient attestation which may be considered in conjunction with the last paragraph. It is significant
that the law does not require the attestation to be contained in a single clause. While perfection in
the drafting of a will may be desirable, unsubstantial departure from the usual forms should be
ignored, especially when the authenticity of the will is not assailed, as in this case.
The result reached in respect of the sufficiency of the will (Exhibit 1Manolita G. Carongcong)
necessarily disposes of the contention of the appellant Manuel Gonzales that the trial court erred in
not admitting to probate the will (Exhibit BManuel Gonzales), since the latter will must be
considered revoked by the subsequent will (Exhibit 1Manolita G. Carongcong).
What remains to be discussed is the claim of appellant Alejandro Gonzales, Jr. that the will (Exhibit 1
Manolita G. Carongcong) has been revoked by the testatrix in the instrument of November 18,
1948 (Exhibit 2Alejandro and Juan Gonzales) which provides as follows:
Ako, MANUEL YBARRA VDA. DE GONZALES, may sapat na gulang at naninirahan sa
ciudad ng Rizal, may mahusay at wastong pag-iisip at mabuting pagtatanda, sa
pamamagitan ng kasulatang ito at bilang huling kapasiyahan ay sinasaysay ko ito at
ipinahahayag sa ngayon sa alin mang testamento o huling habilin na napirmahan kong una
sa kasulatang ito ay pinawawalan ko ng saysay at kabuluhang lahat pagkat hindi iyong tunay
kong kalooban ngayon.
Sa katunayan ng lahat ng ito at sa pagkat hindi ako makalagda ngayon ang pina-kiusapan si
Constancio Padilla na ilagda ako sa kasulatang ito ngayon ika-17 ng Noviembre ng taong ito
1948, dito sa ciudad ng Pasay.
Appellee Manolita G. de Carungcong, like Manuel Gonzales (as appellee), contends that the
testatrix lacked the testamentary capacity when she allegedly executed the instrument of revocation,
and their contention was sustained by the trial court. We have examined the record and found no
valid reason for reversing the finding of said court which had the benefit of observing and hearing the
witnesses testify. Upon the other hand, the following considerations amply support the appealed
decision:.
1. For more than ten years prior to her death, the testatrix had suffered from hypertension. On
November 14, 1948, she had aphasia and on November 15, 1948, she was taken to the hospital
upon advice of the family physician, Dr. Jose C. Leveriza. In the letter introducing her to the hospital
authorities (Exhibit EManuel Gonzales), Dr. Leveriza stated that the testatrix was suffering from
hypertension and cerebral thrombosis. Particularly on November 18, 1948, when the alleged
instrument of revocation was executed by her, the testatrix was in a comatose and unconscious

state and could not talk or understand. The following is the testimony of Dr. Leveriza portraying the
physical condition of the testatrix up to November 18, 1948:
P.
Y que hizo usted cuando Doa Manuela I. Vda. de Gonzales ya estaba en el hospital?
R. Me fui alla para examinarla.
P.
Cual era el resultado de su examen?R. Cuando fue al hospital a examinarla en el
primer dia via que la aphasia se agravo, o sea que ha perdido el poder de hablar
inteligentemente; tambien encontre que estaba inconsciente, durmiendo constantemente y
no se le podia, despertar, tenia la respiracion fatigosa, lenta y con estertores, y no podia
levantarse, asi que yo perscribi que diera el alimento por medio de hypodermoclysis, o sea
por medio de inyecciones.
Sr. PAMINTUAN.Quisieramos saber, Su Seoria, si se presenta al testigo como experto?
Sr. SERRANO.Tambien quisiera saber si se presenta como madico de la familia o como
medico experto?.
Sr. ARCEGA.Presento al testigo como medico de cabecere y como medico experto al
mismo tiempo.
P.
Y que hicieron en el hospital en vista de sus instrucciones?R. Cumplieron la
prescripcion mia.
P.
Que sucedio con respecto al estado de la paciente?R. La paciente a medida que
pasaban los dias se quedaba grave cada vez y mas graves los sintomas aun que al primer
dia en que fue ella llevada al hospital.
P.
Volviendome a la condicion de la paciente, en que estado se encontraba Doa
Manuela I. Vda. de gonzales el 14 de noviembre de 1948 antes de ingresarla en el hospital?
R. La encontre con aphasia, no podia hablar inteligentemente.
"P.
Puede usted explicar al Juzgado el curso de la enfermedad de Doa Manuela I. Vda.
de Gonzales?R. Estuvo agravandose desde el segundo dia en que fue ingresada al
hospital, y desde ese dia orinaba y deponia en la cama inconscientemente.
xxx

xxx

xxx

(t.s.n., Laquindanum, March 21, 1949, pp. 24-26.)

P.
Explique usted al Juzgado el curso de la enfermedad de la paciente haciendo
referencia de las fechas que aparecen en los Exhibitos 3 y 3-4?R. El noviembre 14,
ordene el ingreso de la paciente al Mercy Hospital, porque tuvo paralisis parcial en la
lengua, probablemente de origen embalismo o thrombosis cerebral, y como ya era de noche
no se llevo al hospital, sino el dia 15 de noviembre en donde le he hecho dos visitas; la
condicion de la paciente continuo empeorando hasta el dia 25 de noviembre en que
sobrevino la complicacion de pneumonia hypostatica hasta que fallecio el noviembre 27,
1948, a las 2:30 p.m.
xxx

xxx

xxx

(t.s.n., Laquindanum, March 21, 1948, pp. 28-29.)

JUZGADO.P. Como llego usted a esa conclusion de que desde el 14 de noviembre de
1948 en que usted ordeno la entrega de la paciente al hospital empeoro su salud hasta que
murio el dia 27 de noviembre de 1948?-R. Porque cada vez mas se acentua su estado
comatoso, y demas su respiracion se hacia mas fatigosa cada vez que pasaban los dias, y
con estertores.
P.
Y como estaba su estado mental?R. Estaba completamente inconsciente desde el
dia en que entro en el hospital.
Sr. ARCEGA. P.
Podia hablar la paciente en la fecha en que fue ingresada al
hospital?-R. No, seor.
P.
Despues del 15 de noviembre de 1948 en que segun usted fue ingresada la paciente
en el hospital podia hablar ella y hacer entender sus palabras?R. No, seor.
P.
Y que hacia la paciente?R. Estaba durmiendo continuamente, no podia abrir sus
ojos por si sola, sino que yo abria para ver la pupila.
P.
Trato usted de tener conversacion con la paciente?R. Naturalmente trataba, pero
contestaba, y ni creo que me entendia.
P.
Podia levantarse la paciente?R. No, seor, porque estaba en estado comtosos, y
para prevenir la pneumonia hypostatica dos o tres hombres tenian que levantaria y ponerla
algo de costado o algo asi reclinada.
P.
Y que resultado tuvo esa precaucion que usted tomo?R. Se ha retrasado o
retardado le pneumonia, pero sobrevino, al fin, que siempre es fatal.
P.
Usted dijo que al fin sobrevino la pneumonia, que efecto tuvo esa pneumonia a la
paciente?R. Precipito la muerte de la paciente.
P.
El 18 de noviembre de 1948, segun testimonio de los testigos, otorgaron el
documento Exhibit 2-Alejandro y Juan Gonzales, puede usted decir al Juzgado en que
estado se encontraba Doa Manuela I. Vda. de Gonzales?R. Estaba en estado comatoso.
P.
Por que sabe usted eso?R. Porque en esa fecha yo la visite dos veces: una por la
maana y otra por la tarde.
P.
Y estando en el estado comatoso, como usted, dice, puede usted decir al Juzgado si
podia ella hablar o entender sus palabras o su deseo?R. No, seor.
P.
Hizo usted esfuerzos para hacerie comprender sus palabras?R. Siempre
examinaba a ella para ver si reaccionaba favorablemente la paciente, pero cada vez era
peor.
P.
Puede usted decir si en aquella fecha la paciente podia siquiera hacer movimiento de
cabeza?R. No, seor, porque la parte derecha del cuerpo tenia hemiflejia o paralisis.

P.
Cual es la causa de oso que usted dice hemiflejia o paralisis?R. Generalmente se
debe a una hemorragia cerebral o trombosis del cerebro.
P.
Teniendo hemorragia cerebral o trombosis del cerebro, segun usted, cual es la parte
del cuerpo humano que queda afectada?R. La cabeza y tambien los brazos, como los
miembros del cuerpo.
P.

Que quiere usted decir como los miembros del cuerpo?R. Las manos y los pies.

P.

Podia mover la paciente sus manos y su cuerpo?R. La parte izquierda si.

P.

Y la parte derecha?-R. No, seor.

JUZGADO.Pero una persona en ese estado de salud, como estaba la paciente Doa
Manuela I. Vda. de Gonzales, el 18 de noviembre de 1948, podia comprender palabras
dichas a ella o indicaciones hechas por alguna persona a ella?R. No, seor.(t.s.n.
Laquindanum, March 21, 1948, pp. 30-33.).
While appellant Alejandro Gonzales, Jr. has attempted to show that Dr. Leveriza was not an expert,
the latters's testimony remains uncontradicted. The fact that the testimony of the attesting witnesses
tends to imply that the testatrix was of sound mind at the time the alleged instrument of revocation
was executed, cannot prevail over the findings of the attending physician, Dr. Leveriza, because
even Dr. Ramon C. Talavera (an attesting witness) testified that although he had not examined the
testatrix, her case appeared serious; that he had a hunch that "they were taking advantage of the
last moment of the deceased and they were trying to make me an instrument in the accomplishment
of their aims," and that he had the idea that the testatrix was in doubtful condition because he "could
only judge from the people going there.".
It is also argued that if the testatrix was in a comatose condition, Dr. Leveriza would not have
ordered to "let her sit on bed or on chair and let her turn on her side sometime." However, Dr.
Leveriza has given the reason for this prescription, namely, to avoid hypostatic pneumonia.
In support of the contention that the testimony of the attesting witnesses should be given more
credence than the opinion of an expert witness, reliance is placed on the case of Caguioa vs.
Calderon, 20 Phil., 400; Bagtas vs. Paguio, 22 Phil., 227; Galvez vs. Galvez, 26 Phil., 243;
Samson vs. Corrales Tan Quintin, 44 Phil., 573; Amata vs. Tablizo, 48 Phil., 485, and Neyra vs.
Neyra, 42, Off. Gaz., 2790 ** These cases are notably distinguishable from the case at bar. The
former refer to situations in which the doctors were not in a position to certify definitely as the
testamentary capacity of the testators at the time the wills therein involved were executed, because
they had not observed the testators on said dates or never saw them; whereas the case now before
us involves a family physician who attended the testatrix during her last illness and saw her on the
day when the alleged instrument of revocation was executed.
2. We cannot help expressing our surprise at the fact that the instrument of revocation was allegedly
executed on November 18, 1948, when, according to the testimony of Jose Padilla, the latter was
asked by the testatrix to prepare the necessary document as early as in the month of May, 1948,
and reminded about it for the second time weeks before November 1, 1948, and for the third time
several days before the latter date (November 1, 1948). The first excuse given by Jose Padilla for
the delay is that he was busy and the children of the testatrix had certain disputes which he tried to
settle. The second excuse is that he was not able to secure soon enough from Alejandro Gonzales,
Jr. some documents of transfer which he wanted to examine in connection with the preparation of
the desired instrument of revocation. We are inclined to state that these excuses are rather poor. If

Jose Padilla was too busy to give attention to the matter, he could have very easily informed the
testatrix and the latter, if really desirous of revoking her former wills, would have employed another
to prepare the requisite document. The fact that there were disputes between the children of the
testatrix certainly was not an obstacle to the accomplishment of the wish of the testatrix. Neither was
it necessary to examine the documents relating to the properties of the testatrix, since the instrument
of revocation could be prepared without any reference to the details of her estate. Indeed, the
instrument (Exhibit 2Alejandro and Juan Gonzales) is couched in general terms.
3. Even under the theory of the appellant Alejandro Gonzales, Jr. it is hard to rule that the testatrix
had sufficient testamentary capacity at the time of the execution of the alleged instrument of
revocation. In the first place, Constancio Padilla (brother of Jose Padilla) merely asked the testatrix,
first, if she was agreeable to the instrument of revocation prepared by Jose Padilla, and secondly, if
she was agreeable to the signing of said document by Constancio Padilla, to which two questions
the testatrix allegedly answered "Yes". It is not pretended that the testatrix said more about the
matter or gave any further instruction. The attesting witnesses were not introduced to the testatrix,
and their presence was not even mentioned to her. it is obviously doubtful whether the testatrix
understood the meaning and extent of the ceremony. Assuming that the testatrix answered in the
affirmative the two questions of Constancio Padilla, without more, we cannot fairly attribute to her
manifestation of her desire to proceed, right then and there, with the signing of the questioned
instrument. In other words, contrary to the recital of the attestation clause, the testatrix cannot rightly
be said to have published her last will to the attesting witnesses.
The appealed decision is, therefore, affirmed without costs. So ordered.

ARTICLE 804

FIRST DIVISION
[G.R. No. 147145. January 31, 2005]

TESTATE ESTATE OF THE LATE ALIPIO ABADA, BELINDA

CAPONONG-NOBLE, petitioner, vs. ALIPIO ABAJA and NOEL
ABELLAR, respondents.
DECISION
CARPIO, J.:

The Case
Before the Court is a petition for review assailing the Decision of the
Court of Appeals of 12 January 2001 in CA-G.R. CV No. 47644. The Court of
Appeals sustained the Resolution of the Regional Trial Court of Kabankalan,
Negros Occidental, Branch 61 (RTC-Kabankalan), admitting to probate the
last will and testament of Alipio Abada (Abada).
[1]

[3]

[2]

The Antecedent Facts

Abada died sometime in May 1940. His widow Paula Toray (Toray) died
sometime in September 1943. Both died without legitimate children.
[4]

On 13 September 1968, Alipio C. Abaja (Alipio) filed with the then Court of
First Instance of Negros Occidental (now RTC-Kabankalan) a petition,
docketed as SP No. 070 (313-8668), for the probate of the last will and
testament (will) of Abada. Abada allegedly named as his testamentary heirs
his natural children Eulogio Abaja (Eulogio) and Rosario Cordova. Alipio is the
son of Eulogio.
[5]

Nicanor Caponong (Caponong) opposed the petition on the ground that

Abada left no will when he died in 1940. Caponong further alleged that the
will, if Abada really executed it, should be disallowed for the following reasons:
(1) it was not executed and attested as required by law; (2) it was not intended
as the last will of the testator; and (3) it was procured by undue and improper
pressure and influence on the part of the beneficiaries. Citing the same
grounds invoked by Caponong, the alleged intestate heirs of Abada, namely,
Joel, Julian, Paz, Evangeline, Geronimo, Humberto, Teodora and Elena
Abada (Joel Abada, et al.), and Levi, Leandro, Antonio, Florian, Hernani and
Carmela Tronco (Levi Tronco, et al.), also opposed the petition. The
oppositors are the nephews, nieces and grandchildren of Abada and Toray.
On 13 September 1968, Alipio filed another petition before the RTCKabankalan, docketed as SP No. 071 (312-8669), for the probate of the last
will and testament of Toray. Caponong, Joel Abada, et al., and Levi Tronco, et
al. opposed the petition on the same grounds they cited in SP No. 070 (3138668).
[6]

On 20 September 1968, Caponong filed a petition before the RTCKabankalan, docketed as SP No. 069 (309), praying for the issuance in his
name of letters of administration of the intestate estate of Abada and Toray.
[7]

In an Order dated 14 August 1981, the RTC-Kabankalan admitted to

probate the will of Toray. Since the oppositors did not file any motion for
reconsideration, the order allowing the probate of Torays will became final and
executory.
[8]

In an order dated 23 November 1990, the RTC-Kabankalan designated

Belinda Caponong-Noble (Caponong-Noble) Special Administratrix of the
estate of Abada and Toray. Caponong-Noble moved for the dismissal of the
petition for probate of the will of Abada. The RTC-Kabankalan denied the
motion in an Order dated 20 August 1991.
[9]

[10]

Sometime in 1993, during the proceedings, Presiding Judge Rodolfo S.

Layumas discovered that in an Order dated 16 March 1992, former Presiding
Judge Edgardo Catilo had already submitted the case for decision. Thus, the
RTC-Kabankalan rendered a Resolution dated 22 June 1994, as follows:
There having been sufficient notice to the heirs as required by law; that there is
substantial compliance with the formalities of a Will as the law directs and that the
petitioner through his testimony and the deposition of Felix Gallinero was able to
establish the regularity of the execution of the said Will and further, there being no
evidence of bad faith and fraud, or substitution of the said Will, the Last Will and
Testament of Alipio Abada dated June 4, 1932 is admitted and allowed probate.
As prayed for by counsel, Noel Abbellar is appointed administrator of the estate of
Paula Toray who shall discharge his duties as such after letters of administration shall
have been issued in his favor and after taking his oath and filing a bond in the amount
of Ten Thousand (P10,000.00) Pesos.
[11]

Mrs. Belinda C. Noble, the present administratrix of the estate of Alipio Abada shall
continue discharging her duties as such until further orders from this Court.
SO ORDERED.

[12]

The RTC-Kabankalan ruled on the only issue raised by the oppositors in

their motions to dismiss the petition for probate, that is, whether the will of
Abada has an attestation clause as required by law. The RTC-Kabankalan
further held that the failure of the oppositors to raise any other matter
forecloses all other issues.
Not satisfied with the Resolution, Caponong-Noble filed a notice of appeal.
In a Decision promulgated on 12 January 2001, the Court of Appeals
affirmed the Resolution of the RTC-Kabankalan. The appellate court found
that the RTC-Kabankalan properly admitted to probate the will of Abada.

Hence, the present recourse by Caponong-Noble.

The Issues
The petition raises the following issues:
1. What laws apply to the probate of the last will of Abada;
2. Whether the will of Abada requires acknowledgment before a notary public;[13]
3. Whether the will must expressly state that it is written in a language or dialect known
to the testator;
4. Whether the will of Abada has an attestation clause, and if so, whether the
attestation clause complies with the requirements of the applicable laws;
5. Whether Caponong-Noble is precluded from raising the issue of whether the will of
Abada is written in a language known to Abada;
6. Whether evidence aliunde may be resorted to in the probate of the will of Abada.

The Ruling of the Court

The Court of Appeals did not err in sustaining the RTC-Kabankalan in
admitting to probate the will of Abada.
The Applicable Law
Abada executed his will on 4 June 1932. The laws in force at that time are
the Civil Code of 1889 or the Old Civil Code, and Act No. 190 or the Code of
Civil Procedure which governed the execution of wills before the enactment
of the New Civil Code.
[14]

The matter in dispute in the present case is the attestation clause in the
will of Abada. Section 618 of the Code of Civil Procedure, as amended by Act
No. 2645, governs the form of the attestation clause of Abadas will. Section
618 of the Code of Civil Procedure, as amended, provides:
[15]

[16]

SEC. 618. Requisites of will. No will, except as provided in the preceding section,
shall be valid to pass any estate, real or personal, nor charge or affect the same,
unless it be written in the language or dialect known by the testator and signed by
him, or by the testators name written by some other person in his presence, and by his
[17]

express direction, and attested and subscribed by three or more credible witnesses in
the presence of the testator and of each other. The testator or the person requested by
him to write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, on the left margin, and said pages shall be
numbered correlatively in letters placed on the upper part of each sheet. The
attestation shall state the number of sheets or pages used, upon which the will is
written, and the fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of
three witnesses, and the latter witnessed and signed the will and all pages thereof in
the presence of the testator and of each other.
Requisites of a Will under the Code of Civil Procedure
Under Section 618 of the Code of Civil Procedure, the requisites of a will
are the following:
(1) The will must be written in the language or dialect known by the testator;
(2) The will must be signed by the testator, or by the testators name written by some
other person in his presence, and by his express direction;
(3) The will must be attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other;
(4) The testator or the person requested by him to write his name and the instrumental
witnesses of the will must sign each and every page of the will on the left margin;
(5) The pages of the will must be numbered correlatively in letters placed on the upper
part of each sheet;
(6) The attestation shall state the number of sheets or pages used, upon which the will
is written, and the fact that the testator signed the will and every page of the will,
or caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the witnesses witnessed and signed the will and
all pages of the will in the presence of the testator and of each other.

Caponong-Noble asserts that the will of Abada does not indicate that it is
written in a language or dialect known to the testator. Further, she maintains
that the will is not acknowledged before a notary public. She cites in particular
Articles 804 and 805 of the Old Civil Code, thus:
Art. 804. Every will must be in writing and executed in [a] language or dialect known
to the testator.

Art. 806. Every will must be acknowledged before a notary public by the testator and
the witnesses. xxx
[18]

Caponong-Noble actually cited Articles 804 and 806 of the New Civil
Code. Article 804 of the Old Civil Code is about the rights and obligations of
administrators of the property of an absentee, while Article 806 of the Old Civil
Code defines a legitime.
[19]

Articles 804 and 806 of the New Civil Code are new provisions. Article 804
of the New Civil Code is taken from Section 618 of the Code of Civil
Procedure. Article 806 of the New Civil Code is taken from Article 685 of the
Old Civil Code which provides:
[20]

[21]

Art. 685. The notary and two of the witnesses who authenticate the will must be
acquainted with the testator, or, should they not know him, he shall be identified by
two witnesses who are acquainted with him and are known to the notary and to the
attesting witnesses. The notary and the witnesses shall also endeavor to assure
themselves that the testator has, in their judgment, the legal capacity required to make
a will.
Witnesses authenticating a will without the attendance of a notary, in cases falling
under Articles 700 and 701, are also required to know the testator.
However, the Code of Civil Procedure repealed Article 685 of the Old
Civil Code. Under the Code of Civil Procedure, the intervention of a notary is
not necessary in the execution ofany will. Therefore, Abadas will does not
require acknowledgment before a notary public.
[22]

[23]

Caponong-Noble points out that nowhere in the will can one discern that
Abada knew the Spanish language. She alleges that such defect is fatal and
must result in the disallowance of the will. On this issue, the Court of Appeals
held that the matter was not raised in the motion to dismiss, and that it is now
too late to raise the issue on appeal. We agree with Caponong-Noble that the
doctrine of estoppel does not apply in probate proceedings. In addition, the
language used in the will is part of the requisites under Section 618 of the
Code of Civil Procedure and the Court deems it proper to pass upon this
issue.
[24]

Nevertheless, Caponong-Nobles contention must still fail. There is no

statutory requirement to state in the will itself that the testator knew the
language or dialect used in the will. This is a matter that a party may
establish by proof aliunde. Caponong-Noble further argues that Alipio, in his
testimony, has failed, among others, to show that Abada knew or understood
the contents of the will and the Spanish language used in the will. However,
Alipio testified that Abada used to gather Spanish-speaking people in their
place. In these gatherings, Abada and his companions would talk in the
Spanish language. This sufficiently proves that Abada speaks the Spanish
language.
[25]

[26]

[27]

The Attestation Clause of Abadas Will

A scrutiny of Abadas will shows that it has an attestation clause. The
attestation clause of Abadas will reads:
Suscrito y declarado por el testador Alipio Abada como su ultima voluntad y
testamento en presencia de nosotros, habiendo tambien el testador firmado en nuestra
presencia en el margen izquierdo de todas y cada una de las hojas del mismo. Y en
testimonio de ello, cada uno de nosotros lo firmamos en presencia de nosotros y del
testador al pie de este documento y en el margen izquierdo de todas y cada una de las
dos hojas de que esta compuesto el mismo, las cuales estan paginadas
correlativamente con las letras UNO y DOS en la parte superior de la carrilla.
[28]

Caponong-Noble proceeds to point out several defects in the attestation

clause. Caponong-Noble alleges that the attestation clause fails to state the
number of pages on which the will is written.
The allegation has no merit. The phrase en el margen izquierdo de todas
y cada una de las dos hojas de que esta compuesto el mismo which means in
the left margin of each and every one of the two pages consisting of the same
shows that the will consists of two pages. The pages are numbered
correlatively with the letters ONE and TWO as can be gleaned from the
phrase las cuales estan paginadas correlativamente con las letras UNO y
DOS.
Caponong-Noble further alleges that the attestation clause fails to state
expressly that the testator signed the will and its every page in the presence
of three witnesses. She then faults the Court of Appeals for applying to the

present case the rule on substantial compliance found in Article 809 of the
New Civil Code.
[29]

The first sentence of the attestation clause reads: Suscrito y declarado por
el testador Alipio Abada como su ultima voluntad y testamento en presencia
de nosotros, habiendo tambien el testador firmado en nuestra presencia en el
margen izquierdo de todas y cada una de las hojas del mismo. The English
translation is: Subscribed and professed by the testator Alipio Abada as his
last will and testament in our presence, the testator having also signed it in
our presence on the left margin of each and every one of the pages of the
same. The attestationclause clearly states that Abada signed the will and its
every page in the presence of the witnesses.
However, Caponong-Noble is correct in saying that the attestation clause
does not indicate the number of witnesses. On this point, the Court agrees
with the appellate court in applying the rule on substantial compliance in
determining the number of witnesses. While the attestation clause does not
state the number of witnesses, a close inspection of the will shows that three
witnesses signed it.
This Court has applied the rule on substantial compliance even before the
effectivity of the New Civil Code. In Dichoso de Ticson v. De Gorostiza, the
Court recognized that there are two divergent tendencies in the law on wills,
one being based on strict construction and the other on liberal construction.
In Dichoso, the Court noted that Abangan v. Abangan, the basic case on the
liberal construction, is cited with approval in later decisions of the Court.
[30]

[31]

In Adeva vda. De Leynez v. Leynez, the petitioner, arguing for liberal

construction of applicable laws, enumerated a long line of cases to support
her argument while the respondent, contending that the rule on strict
construction should apply, also cited a long series of cases to support his
view. The Court, after examining the cases invoked by the parties, held:
[32]

x x x It is, of course, not possible to lay down a general rule, rigid and inflexible,
which would be applicable to all cases. More than anything else, the facts and
circumstances of record are to be considered in the application of any given rule. If
the surrounding circumstances point to a regular execution of the will, and the
instrument appears to have been executed substantially in accordance with the
requirements of the law, the inclination should, in the absence of any suggestion of

bad faith, forgery or fraud, lean towards its admission to probate, although the
document may suffer from some imperfection of language, or other non-essential
defect. x x x.
An attestation clause is made for the purpose of preserving, in permanent form, a
record of the facts attending the execution of the will, so that in case of failure of the
memory of the subscribing witnesses, or other casualty, they may still be proved.
(Thompson on Wills, 2d ed., sec. 132.) A will, therefore, should not be rejected where
its attestation clause serves the purpose of the law. x x x
[33]

We rule to apply the liberal construction in the probate of Abadas will.

Abadas will clearly shows four signatures: that of Abada and of three other
persons. It is reasonable to conclude that there are three witnesses to the will.
The question on the number of the witnesses is answered by an examination
of the will itself and without the need for presentation of evidencealiunde. The
Court explained the extent and limits of the rule on liberal construction, thus:
[T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open the
door to serious consequences. The later decisions do tell us when and where to stop;
they draw the dividing line with precision. They do not allow evidence aliunde to fill
a void in any part of the document or supply missing details that should appear
in the will itself. They only permit a probe into the will, an exploration within its
confines, to ascertain its meaning or to determine the existence or absence of the
requisite formalities of law. This clear, sharp limitation eliminates uncertainty and
ought to banish any fear of dire results. (Emphasis supplied)
[34]

The phrase en presencia de nosotros or in our presence coupled with the

signatures appearing on the will itself and after the attestation clause could
only mean that: (1) Abada subscribed to and professed before the three
witnesses that the document was his last will, and (2) Abada signed the will
and the left margin of each page of the will in the presence of these three
witnesses.
Finally, Caponong-Noble alleges that the attestation clause does not
expressly state the circumstances that the witnesses witnessed and signed
the will and all its pages in the presence of the testator and of each other. This
Court has ruled:

Precision of language in the drafting of an attestation clause is desirable. However, it

is not imperative that a parrot-like copy of the words of the statute be made. It is
sufficient if from the language employed it can reasonably be deduced that the
attestation clause fulfills what the law expects of it.
[35]

The last part of the attestation clause states en testimonio de ello, cada
uno de nosotros lo firmamos en presencia de nosotros y del testador. In
English, this means in its witness, every one of us also signed in our presence
and of the testator. This clearly shows that the attesting witnesses witnessed
the signing of the will of the testator, and that each witness signed the will in
the presence of one another and of the testator.
WHEREFORE, we AFFIRM the Decision of the Court of Appeals of 12
January 2001 in CA-G.R. CV No. 47644.
SO ORDERED.
EN BANC
G.R. No. L-1787

August 27, 1948

Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee,

vs.
AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez and Adorable for appellant.
Ramon Diokno for appellee.
TUASON, J.:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what
purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the document in question was
executed. In the court below, the present appellant specified five grounds for his opposition, to wit:
(1) that the deceased never executed the alleged will; (2) that his signature appearing in said will
was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well
as mental capacity due to advanced age; (4) that, if he did ever execute said will, it was not
executed and attested as required by law, and one of the alleged instrumental witnesses was
incapacitated to act as such; and it was procured by duress, influence of fear and threats and undue
and improper pressure and influence on the part of the beneficiaries instituted therein, principally the
testator's sister, Clemencia Lopez, and the herein proponent, Jose S. Lopez; and (5) that the
signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the
court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required

by law." To this objection is added the alleged error of the court "in allowing the petitioner to
introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner
rested his case and over the vigorous objection of the oppositor.
The will in question comprises two pages, each of which is written on one side of a separate sheet.
The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a
fatal defect.
The purpose of the law in prescribing the paging of wills is guard against fraud, and to afford means
of preventing the substitution or of defecting the loss of any of its pages. (Abangan vs. Abangan, 40
Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be
necessary, is supplied by other forms of identification more trustworthy than the conventional
numerical words or characters. The unnumbered page is clearly identified as the first page by the
internal sense of its contents considered in relation to the contents of the second page. By their
meaning and coherence, the first and second lines on the second page are undeniably a
continuation of the last sentence of the testament, before the attestation clause, which starts at the
bottom of the preceding page. Furthermore, the unnumbered page contains the caption
"TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his
testamentary faculty, all of which, in the logical order of sequence, precede the direction for the
disposition of the marker's property. Again, as page two contains only the two lines above
mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the
other sheet can not by any possibility be taken for other than page one. Abangan vs.
Abangan,supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the
credibility of the witnesses is assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such contradictions in the testimony of the
instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one
of the witnesses can be supposed to have perceived, or to recall in the same order in which they
occurred.
Everyday life and the result of investigations made in the field of experimental psychology
show that the contradictions of witnesses generally occur in the details of a certain incident,
after a long series of questioning, and far from being an evidence of falsehood constitute a
demonstration of good faith. Inasmuch as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions they should not
agree in the minor details; hence, the contradictions in their testimony. (People vs. Limbo, 49
Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this
was that the testator was suffering from "partial paralysis." While another in testator's place might
have directed someone else to sign for him, as appellant contends should have been done, there is
nothing curious or suspicious in the fact that the testator chose the use of mark as the means of
authenticating his will. It was a matter of taste or preference. Both ways are good. A statute requiring
a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs.
Gonzales and Ona, 53 Phil., 108; 28 R. C. L., 117.)
With reference to the second assignment of error, we do not share the opinion that the trial court
communicated an abuse of discretion in allowing the appellant to offer evidence to prove knowledge

of Spanish by the testator, the language in which the will is drawn, after the petitioner had rested his
case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of
evidence. It is within the discretion of the court whether or not to admit further evidence after the
party offering the evidence has rested, and this discretion will not be reviewed except where it has
clearly been abused. (64 C. J., 160.) More, it is within the sound discretion of the court whether or
not it will allow the case to be reopened for the further introduction of evidence after a motion or
request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court
has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or
has denied the same, or after the motion has been granted, if the order has not been written, or
entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct
proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence upon their original case,
and its ruling will not be disturbed in the appellate court where no abuse of discretion appears.
(Siuliong and Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional
evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence
or mistake, or where the purpose of the evidence is to the evidence is to correct evidence previously
offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission
to present evidence on the testator's knowledge of Spanish had not been deliberate. It was due to a
misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the
testator's understanding of the language used in the testament. There is no statutory requirement
that such knowledge be expressly stated in the will itself. It is a matter that may be established by
proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the
probate of a will written in Tagalog was ordered although it did not say that the testator knew that
idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator
resided in a Tagalog region, from which the court said "a presumption arises that said Maria Tapia
knew the Tagalog dialect.
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is
affirmed, with costs.
Paras, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ.
EN BANC
G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters; and these omissions, according to appellants' contention, are defects whereby the probate of
the will should have been denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable
in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are
wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a
will written on several sheets and must have referred to the sheets which the testator and the
witnesses do not have to sign at the bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and the witnesses in
the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty,
same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that
the statute regards of such importance the place where the testator and the witnesses must sign on
the sheet that it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on
the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at the bottom by the three

witnesses, it is not necessary that both sheets be further signed on their margins by the testator and
the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordal
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded.
lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the
dialect in which the will is written. But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against
the appellants. So ordered.
EN BANC
G.R. No. L-28946

January 16, 1929

In re estate of Piraso, deceased.

SIXTO ACOP, petitioner-appellant,
vs.
SALMING PIRASO, ET AL., opponents-appellees.
Gibbs and McDonough and Roman Ozaeta for appellant.
Adolfo A. Scheerer for appellees.
ROMUALDEZ, J.:
This appeal was taken from the judgment of the Court of First Instance of Benguet, denying the
probate of the instrument Exhibit A, as the last will and testament of the deceased Piraso.
The proponent-appellant assigns the following as alleged errors of the lower court:
1. In holding that in order to be valid the will in question should have been drawn up in the
Ilocano dialect.
2. In not holding that the testator Piraso did not know the Ilocano dialect well enough to
understand a will drawn up in said dialect.
3. In refusing to admit the will in question to probate.

The fundamental errors assigned refer chiefly to the part of the judgment which reads as follows:
The evidence shows that Piraso knew how to speak the Ilocano dialect, although imperfectly,
and could make himself understood in that dialect, and the court is of the opinion that his will
should have been written in that dialect.
Such statements were not unnecessary for the decision of the case, once it has been proved without
contradiction, that the said deceased Piraso did not know English, in which language the instrument
Exhibit A, alleged to be his will, is drawn. Section 628 of the Code of Civil Procedure, strictly
provides that:
"No will, except as provides in the preceding section" (as to wills executed by a Spaniard or a
resident of the Philippine Islands, before the present Code of Civil Procedure went into effect), "shall
be valid to pass any estate, real or personal, nor charge or affect the same, unless it be written in
the language or dialect known by the testator," etc. (Emphasis supplied.) Nor can the presumption in
favor of the will established by this court in Abangan vs. Abangan (40 Phil., 476), to the effect that
the testator is presumed to know the dialect of the locality where he resides, unless there is proof to
the contrary, even he invoked in support of the probate of said document Exhibit A, as a will,
because, in the instant case, not only is it not proven that English is the language of the City of
Baguio where the deceased Piraso lived and where Exhibit A was drawn, but that the record
contains positive proof that said Piraso knew no other language than the Igorrote dialect, with a
smattering of Ilocano; that is, he did not know the English language in which Exhibit A is written. So
that even if such a presumption could have been raised in this case it would have been wholly
contradicted and destroyed.
We consider the other question raised in this appeal needless and immaterial to the adjudication of
this case, it having been, as it was, proven, that the instrument in question could not be probated as
the last will and testament of the deceased Piraso, having been written in the English language with
which the latter was unacquainted.
Such a result based upon solidly established facts would be the same whether or not it be
technically held that said will, in order to be valid, must be written in the Ilocano dialect; whether or
not the Igorrote or Inibaloi dialect is a cultivated language and used as a means of communication in
writing, and whether or not the testator Piraso knew the Ilocano dialect well enough to understand a
will written in said dialect. The fact is, we repeat, that it is quite certain that the instrument Exhibit A
was written in English which the supposed testator Piraso did not know, and this is sufficient to
invalidate said will according to the clear and positive provisions of the law, and inevitably prevents
its probate.
The judgment appealed from is affirmed, with the costs of this instance against the appellant. So
ordered.
EN BANC
G.R. No. L-2862

April 21, 1952

TESTATE ESTATE OF MARIA ZUIGA VDA. DE PANDO, deceased. JUAN REYES, petitioneradministrator-appellant,

vs.
DOLORES ZUIGA VDA. DE VIDAL, oppositor-appellee.
Jose Sotelo Mati and Agustin Alvarez Salazar for appellant.
Jose Perez Cardenas for appellee.
BAUTISTA ANGELO, J.:
This concerns the admission to probate of a document claimed to be the last will and testament of
Maria Zuiga Vda. de Pando who died in the City of Manila on October 29, 1945.
On November 6, 1945, a petition for the probate of said will was filed in the Court of First Instance of
Manila. On December 21, 1945, Dolores Zuiga Vda. de Vidal, sister of the deceased, filed an
opposition based on several grounds. And, after several days of trial, at which both parties presented
their respective evidence, the court rendered its decision disallowing the will on the ground that the
signatures of the deceased appearing therein are not genuine, that it was not proven that the
deceased knew the Spanish language in which it was written, and that even if the signatures are
genuine, the same reveal that the deceased was not of sound mind when she signed the will. From
this decision petitioner appealed to this Court.
While petitioner imputes nine errors to the lower court, we believe, however, that for purposes of this
appeal of discussion of some would be sufficient. Thus, the issues may be boiled down as follows: 1)
Whether or not the signatures of the deceased appearing in the will (Exhibit "C") are genuine; 2)
whether or not there is evidence to show that the testatrix knew the language in which the will was
written; and 3) whether or not the testatrix was of sound and disposing mind when she signed the
will.
1. To prove that the will was signed by the testatrix in accordance with law, petitioner presented as
witnesses the three persons who attested to the execution of the will. These witnesses are: Cornelia
Gonzales de Romero, Quintin Ulpindo and Consuelo B. de Catindig. The first used to provide the
deceased with ice every day, and in one of those occasions she went to her house to bring ice, she
requested to act witness to the execution of the will. The second was a laborer whose job was is to
fix bed made of rattan, and in one of those days he went to the house of the deceased to work, he
was asked also to witness the signing of the will. And the third was a neighbor of the deceased for
many years who was also requested to act as an instrumental witness. These witnesses testified in
their own simple and natural way that the deceased signed the will seated on her bed but over a
small table placed near the bed in their presence, and after she had signed it in the places where her
signatures appear, they in turn signed it in the presence and in the presence of each other. This is
the substance of what they have testified and from an examination of their testimony to the court
entertains no doubt that they had told the truth. There is nothing in their testimony which may in any
way reflect against their credibility nor has the oppositor proven fact or circumstance which may give
rise to the suspicion that they testified out of personal interest or pecuniary consideration. They have
impressed the court as simple persons who had intervened in the execution of the will out merely of
deference to the testatrix whom they had served for sometime and had known to be a good and
respectable woman.
What evidence has the oppositor presented to contradict the testimony of these instrumental
witnesses? only one expert witness, Jose G. Villanueva, who made a comparative analysis of the
signatures appearing in the will in relation to some genuine signatures of the deceased, and in fact

testified on the analysis and study he has made of said signatures and submitted a memorandum on
the study and comparison he has made. And in his testimony as well as in his memorandum, this
witness has reached the conclusion that the hand that wrote the signatures of the deceased
appearing in the will is not the same hand that wrote the genuine signatures he had examined and
which he used as basis of his analytical study, thereby concluding that said signatures are not
genuine. The lower court gave full faith and credit to the opinion of this expert witness, and decreed
as a result that the will cannot be admitted to probate.
There are, however, certain important facts and circumstances which make us differ from this
opinion of the lower court. In the first place, we find that the opinion of this expert witness has been
rebutted by another expert witness Jose C. Espinosa, whose opinion, to our mind, deserves more
weight and credence. And our reason for reaching this conclusion is the fact that the standards of
the comparison used by Espinosa are more reliable than those used by Villanueva in the
comparison are two signatures appearing in two documents executed on November 10, 1942, one
signature in an identification card affixed in April 1940, a half signature appearing in a letter written
on October 8, 1943, one signature appearing in a letter written on July 16, 1945, and one signature
appearing in a letter written on January, 1945, whereas the disputed signatures appearing in the will
were affixed on October 29, 1945. On the other hand, the standards used by Espinosa in making his
comparative study bear dates much closer to that of the disputed signatures. Thus, he examined
four genuine signatures that were affixed on October 16, 1945, other four signatures that were
affixed in October 1945, one on January 2, 1945, on January 24, 1945, and one on September 24
1945, He also examined one affixed on March 12, 1941, only for emphasis. The closeness or
proximity of the time in which the standards used had been written to that of the suspected signature
or document is very important to bring about an accurate analysis and conclusion. the selection of
the proper standards of comparison is of paramount importance especially if we consider the age
and the state of the health of the author of the questioned signatures. a signature affixed in 1941
may involved characteristics different from those borne by a signature affixed in 1945. And this is
because the passing of time and the increase in age may have a decisive influence in the writing
characteristics of a person. It for this reasons that the authorities of the opinion that in order to bring
about an accurate comparison and analysis, the standard of comparison must be as close as
possible in point of time to the suspected signature. Such was not followed in the study made by
Villanueva. But such was observed in the study made by Espinosa. He followed the standard
practice in handwriting analysis. It is for this reason that we hold that Espinosa's opinion deserves
more weight and consideration.
The standards should, if possible, have been made by the same time as the suspected
document. It is preferable that the standards embraced the time of the origin of the
document, so that one part comes from the time after the origin. (Page 423 "Modern Criminal
Investigation" by Soderman and O' Connell, 1936, Funk and Wagnalls Company, New York
and London.)
If possible less than five or six signatures should always be examined and preferably double
that number." (Page 139, Forensic Chemistry and Scientific Criminal Investigation by Lucas,
1935, Edward Arnold & Co., London.)
2. Another ground on which the lower court base the disallowance of the will is the failure of the
petitioner to prove that the testratrix knew and spoke the language in which the will in question
appears to have been written. According to the lower court, the law requires that the will should be

written in the dialect or language known to the testator and this fact having been proven, the probate
of the will must fail. And the wall was disallowed.
There is indeed nothing in the testimony of the witnesses presented by the petitioner which would
indicate that the testatrix knew and spoke the Spanish language used in the preparation of the will in
question. But, in our opinion, this failure alone does not in itself suffice to conclude that this important
requirement of the law has not been complied with, it appearing that there is enough evidence on
record which supplies this technical omission. In the first place, we have the undisputed fact that the
deceased was a mestiza espaola, was married to a Spaniard, Recaredo Pando, and made several
trips to Spain. In the second place, we have the very letters submitted as evidence by the oppositor
written in Spanish by the deceased possessed the Spanish language, oppositor cannot now be
allowed to allege the contrary. These facts give rise to the presumption that the testatrix knew the
language in which the testament has been written, which presumption should stand unless the
contrary is proven (Abangan vs. Abangan, 40 Phil., 476; Gonzales vs. Laurel, 46 Phil. 750). And this
presumption has not been overcome. And finally, we have the very attestation clause of the will
which states that the testatrix knew and possessed the Spanish language. It is true that this matter is
not required to be stated in the attestation clause, but its inclusion can only mean that the
instrumental witnesses wanted to make it of record that the deceased knew the language in which
the will was written. There is, therefore, no valid reason why the will should be avoided on this
ground.
3. The remaining ground which the lower court has considered in disallowing the will is the fact that
the deceased was not of sound and disposing mind when she signed the will, and it reached this
conclusion, not because of any direct evidence on the matter, but simply because the deceased
signed the will in a somewhat varied form. On this point the lower court said:
El Juzgado es de opinion que aunque se admita que las firmas arriba indicadas feuran de
Maria Zuiga Vda. de Pando, las mismas revelan que ella no estabe en el pleno de sus
facultades mentales cuando la hicieron firmar el documento, Exhibit C, pues el hecho de que
en una sola ocasion la repetida Maria Zuiga Vda. de Pando firmo dos veces, sin escribir su
verdadero nombre, demuestra que ella no se daba cuenta de sus actos por no hallarse
mentalmente sana. Si esto es asi, no se debe legalizar como testamento y ultima voluntad
de la finada Maria Zuiga Vda. de Pando el documento, Exhibit C, porque el Articulo 614 de
la Ley 190 y el Articulo 12, Reglamentos de los Tribunales, disponen que solamente pueden
otorgar testamento las personas que al tiempo de su otorgamiento estaban en el pleno goce
de sus facultades mentales.
The above conclusion is contrary to what the instrumental witnesses have said on this point.
Cornelio Gonzales de Romero stated that she spoke to the deceased before the signing of the will,
and judging from the way she spoke she was of the impression that the deceased was of sound
mind at the time. To the same effect is the testimony of Consuelo B. de Catindig. She said that her
impression when the deceased signed the will was that she could still talk and read, only that she
was weak. In fact she read the will before signing it. These statements had not been contradicted.
They give an idea of the mental had not contradicted. They give an idea of mental condition of the
deceased in the will differ from each other in certain respects, this is only due to her age and state of
health rather than to a defective mental condition. They do not reveal a condition of forgery or lack of
genuineness. These differences or irregularities are common in the writings of old people and, far
from showing lack of genuineness, are indicative of the age, sickness, or weak condition of the
writer. A comparison of the three disputed signatures in the will readily give this impression.

Abbreviated, distorted and illegible, forms, which are sufficiently free and rapid, often actually
indicate genuineness rather than forgery even though they are very unusual and not exactly
like those in the standard writing. Those who write of difficulty or hesitation through some
physical infirmity may sometimes produced broken and unfinished signatures and these
results, which in themselves are distinctly divergent as compared with signatures produced
under conditions of strength and health, may forcefully indicate genuineness . Under
conditions of weakness due to diseased or age, parts of a genuine signature may be
clumsily written over a second time not at just the same place and in a way when clearly
shows that the writer either could not see or was so week and inattentive as not to care what
the result might be. This careless, perfectly evident repetition (figure 184), unlike the
painstaking and delicate retouching of the forger, often indicates genuineness. (Page 365,
Questioned Documents by Osborne, 2nd Edition, 1927.)
We are, therefore, of the opinion that the lower court erred in disallowing the will Exhibit C.
Wherefore, the decision appealed from is hereby reversed. The Court admits the will Exhibit C to
probate, and remands these case to the lower court for further proceedings, with costs against the
appellee.
Paras, C.J., Feria, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.
FIRST DIVISION
[G.R. No. L-13781. January 30, 1960.]
Testate Estate of JOSE J. JAVELLANA, Deceased. CRISTETA JIMENEA VDA. DE JAVELLANA, and
BENJAMIN JAVELLANA, Petitioners-Appellees, v. JOSE JAVELLANA y AZAOLA and JOSE
JAVELLANA, JR., Oppositors-Appellants.
Vicente Hilado for Appellees.
Delgado, Flores & Macapagal and Arturo E. Balbastro for appellants.

SYLLABUS

1. WILLS AND TESTAMENTS; DUE EXECUTION; HOW DETERMINED. For the purpose of determining the
due execution of a will, it is not necessary that the instrumental witnesses should give all accurate and
detailed account of the proceeding, such as recalling the order of the signing of the document by the said
witnesses. It is sufficient that they have seen or at least were so situated at the moment that they could
have seen each other sign, had they wanted to do so. (Jaboneta v. Gustilo, 5 Phil., 541; Neyra v. Neyra, 42
Off. Gaz., 2817; see also Fernandez v. Tantoco, 49 Phil., 380.)
2. ID.; PROOF THAT WILL WAS WRITTEN IN LANGUAGE KNOWN TO TESTATOR; CASE AT BAR. Where
there is want of expression in the body of the will itself or in the attestation clause that the testator knew
the language in which the will was written, proof thereof may be established by evidence aliunde. Although
lack of such evidence may be cured by presumption of knowledge of the language or dialect used in the will,
no such presumption can arise where, as in the case at bar, the will was executed in Spanish, while the
testator was a Visayan residing in San Juan, Rizal at the time of his death.

DECISION

BARRERA, J.:

On June 29, 1957, a petition to probate the alleged last will and testament of Jose J. Javellana, who died on
May 24 of the same year, was presented in the Court of First Instance of Rizal by Cristeta Jimenea Vda. de
Javellana and Benjamin Javellana, widow and brother respectively of the deceased, alleging that the
aforesaid Jose J. Javellana, at the time of his death, a resident of San Juan, Rizal, left properties with an
approximate value of P400,000.00; that he also left a will which was delivered to the clerk of court pursuant
to the Rules of Court; that Oscar Ledesma, therein named executor, had agreed to act as such; that the
decedents next of kin were: the widow, Cristeta J. Vda. de Javellana, his children Erlinda Javellana, Jose
Javellana y Azaola, and Jose Javellana, Jr. (Pepito), his sister Juanita J. de Ledesma, and brother Benjamin
Javellana, whose respective addresses were given in the petition.
To this petition, Jose Javellana y Azaola and Jose Javellana, Jr. (Pepito) filed separate oppositions, both
claiming that the alleged will of Jose J. Javellana deposited by petitioners with the clerk of court was null and
void, the same not having been executed "in accordance with the formalities required by law" and that "the
legal requirements necessary for its validity" had not been complied with.
At the hearing, petitioners introduced as evidence in support of the petition, a copy of the will; certification
of the date and cause of death of the testator; proof of publication of the petition, once a week for 3
consecutive weeks, in a newspaper of general circulation, and the testimonies of Jose G. Guevarra, Eloisa
Villanueva and Jose Yulo, Jr., the 3 instrumental witnesses to the will, who, in substance, testified that
sometime in April, 1956, they were asked to witness the execution of the will of the late Jose J. Javellana;
that on the said occasion, Jose J. Javellana signed the 4 pages of the will in their presence, and they, in turn,
also signed each and every page thereof in the presence of the testator and of one another; and that these
acts were acknowledged before notary public Fernando Grey, Jr. on the same occasion.
For their part, the oppositors limited their evidence to the presentation of two letters in the Visayan dialect
allegedly written by the deceased, the signatures appearing thereon being identified by Jose Javellana, Jr.
(Pepito) and Manuel Azaola, as those of the deceased, for the sole purpose of comparing said signatures
with those appearing in the will.
On December 10, 1957, the court a quo issued an order allowing the probate of the will and directing the
issuance of letters testamentary to Oscar Ledesma as executor thereof, upon the latters filing a bond in the
sum of P10,000.00. From this order, oppositors appealed to this Court charging the lower court of
committing error in allowing probate of the will, Exhibit C, on 2 grounds: (1) that the 3 attesting witnesses
failed to clearly and convincingly establish the due execution of the will; and (2) that petitioners failed to
prove that the will was written in a language known to the testator.
The first basis of oppositors appeal has no merit. It is true that the witnesses, particularly Miss Eloisa
Villanueva, apparently found difficulty recalling who arrived first at the appointed place, or the order of the
witnesses signing the will, or failed to mention by name the persons present at the time one of the
witnesses was signing the document. These details, however, are minor and insignificant and do not
enervate their positive testimony that at the execution of the will, the testator, the 3 witnesses, the notary
public and Atty. Vicente Hilado were all together in the private office of the latter; that Jose Guevarra, Eloisa
Villanueva and Jose Yulo, Jr., the instrumental witnesses, were unanimous in declaring that they actually saw
the testator sign the will as well as each and every page thereof, and they, in turn, affixed their signatures
to all its 4 pages. For the purpose of determining the due execution of a will, it is not necessary that the
instrumental witnesses should give an accurate and detailed account of the proceeding, such as recalling the
order of the signing of the document by the said witnesses. It is sufficient that they have seen or at least
were so situated at the moment that they could have seen each other sign, had they wanted to do so. 1 In
fact, in the instant case, at least two witnesses, Yulo and Guevarra, both testified that the testator and the 3
witnesses signed in the presence of each and every one of them.
With respect to the second ground, there is some merit in appellants contention that the language
requirement of the law on wills has not been satisfactorily complied with in this case. Admittedly, there is
want of expression in the body of the will itself or in its attestation clause that the testator knew Spanish,
the language in which it is written. It is true that there is no statutory provision requiring this and that proof
thereof may be established by evidence aliunde. 2 But here, there is absolutely no such evidence presented
by the petitioners-appellees. Not even the petition for probate contains any allegation to this effect. No
reference to it whatsoever is made in the appealed order.

In some cases, it is true, this lack of evidence was considered cured by presumption of knowledge of the
language or dialect used in the will, as where the will is executed in a certain province or locality, in the
dialect currently used in such province or locality in which the testator is a native or resident, the
presumption arises that the testator knew the dialect so used, in the absence of evidence to the contrary; 3
or where the will is in Spanish, the fact that the testatrix was a "mestiza espaola", was married to a
Spaniard, made several trips to Spain, and some of her letters in her own handwriting submitted as
evidence by the oppositor, are in Spanish, give rise to the presumption that she knew the language in which
the will was written, in the absence of proof to the contrary. 4
In the case before us, no such or similar circumstances exist. On the contrary, there is evidence that the
testator is a Visayan although residing in San Juan, Rizal at the time of his death. The will was executed in
the City of Manila. Undoubtedly, it cannot be said, and there is no evidence, that Spanish is the language
currently used either in San Juan, Rizal, or Manila. It follows, therefore, that no presumption can arise that
the testator knew the Spanish Language.
But petitioner-appellees insist in their brief that the burden is on the oppositors to allege and prove that the
testator did not know the Spanish language in the face of the legal presumptions that "the law has been
obeyed", "that a will executed in the Philippines must be presumed to have been executed in conformity with
the laws of the Philippines", 5 and "that things have happened in accordance with the ordinary course of
nature and the ordinary habits of life", concluding that it would certainly be contrary to the ordinary habits
of life for a person to execute his will in a language unknown to him. This, we believe, is, to use a colloquial
term, begging the question. If the argument of counsel is correct, then every unopposed will may be
probated upon its mere presentation in court, without need of producing evidence regarding its execution.
Counsels statement is its own refutation.
We find, however, in the record some indicia, although insufficient to give rise to the presumption, that the
testator might, in fact, have known the Spanish language. In oppositors own Exhibit 3 (a letter admittedly
written by the testator) appear the salutation "Querido Primo" and the complimentary ending "Su primo"
which are Spanish terms. Having found that all the formal requisites for the validity of the will have been
satisfactorily established, except the language requirement, we deem it in the interest of justice to afford
the parties an opportunity to present evidence, if they so desire, on this controverted issue.
Wherefore, let the records of this case be remanded to the court of origin for further proceedings as above
indicated, without costs. It is so ordered.

SECOND DIVISION
A.M. No. 2026-CFI December 19, 1981
NENITA DE VERA SUROZA, complainant,
vs.
JUDGE REYNALDO P. HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to probate a will,
which on its face is void because it is written in English, a language not known to the illiterate
testatrix, and which is probably aforged will because she and the attesting witnesses did not appear
before the notary as admitted by the notary himself?
That question arises under the pleadings filed in the testate case and in the certiorari case in the
Court of Appeals which reveal the following tangled strands of human relationship:

Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine Scouts), Fort McKinley,
married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No. 7816). They were childless. They
reared a boy named Agapito who used the surname Suroza and who considered them as his
parents as shown in his 1945 marriage contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No.
08654-R; p. 148, Rollo of Testate Case showing that Agapito was 5 years old when Mauro married
Marcelina in 1923).
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of the Federal
Government. That explains why on her death she had accumulated some cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist and went abroad.
Agapito also became a soldier. He was disabled and his wife Nenita was appointed as his guardian
in 1953 when he was declared an incompetent in Special Proceeding No. 1807 of the Court of First
Instance of Rizal, Pasig Branch I (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz wanted also to be his
guardian in another proceeding. Arsenia tried to prove that Nenita was living separately from Agapito
and that she (Nenita) admitted to Marcelina that she was unfaithful to Agapito (pp. 61-63, Record of
testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and confirmed Nenita's
appointment as guardian of Agapito (p. 16, Rollo of CA case). Agapito has been staying in a
veteran's hospital in San Francisco or Palo Alto, California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena Talan begot a child
named Marilyn Sy, who, when a few days old, was entrusted to Arsenia de la Cruz (apparently a girl
friend of Agapito) and who was later delivered to Marcelina Salvador Suroza who brought her up as
a supposed daughter of Agapito and as her granddaughter (pp. 23-26, Rollo of CA-G.R. No.SP08654-R). Marilyn used the surname Suroza. She stayed with Marcelina but was not legally adopted
by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas Street, Makati,
apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she was 73 years
old. That will which is in English was thumbmarked by her. She was illiterate. Her letters in English to
the Veterans Administration were also thumbmarked by her (pp. 38-39, CA Rollo). In that wig,
Marcelina bequeathed all her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City. At the time of her
death, she was a resident of 7374 San Maximo Street, Olimpia, Makati, Rizal. She owned a 150square meter lot and house in that place. She acquired the lot in 1966 (p. 134, Record of testate
case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina (P. 97, CA Rollo) and
the executrix in her will (the alternate executrix was Juanita Macaraeg, mother of Oscar, Marilyn's
husband), filed with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the probate of
Marcelina's alleged will. The case was assigned to Judge Reynaldo P. Honrado.

As there was no opposition, Judge Honrado commissioned his deputy clerk of court, Evangeline S.
Yuipco, to hear the evidence. The transcripts of the stenographic notes taken at the hearing before
the deputy clerk of court are not in the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as administratrix. On the
following day, April 1, Judge Honrado issued two orders directing the Merchants Banking
Corporation and the Bank of America to allow Marina to withdraw the sum of P10,000 from the
savings accounts of Marcelina S. Suroza and Marilyn Suroza and requiring Corazon Castro, the
custodian of the passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11, 1975, instructing a
deputy sheriff to eject the occupants of the testatrix's house, among whom was Nenita V. Suroza,
and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the settlement of
Marcelina's estate. She and the other occupants of the decedent's house filed on April 18 in the said
proceeding a motion to set aside the order of April 11 ejecting them. They alleged that the
decedent's son Agapito was the sole heir of the deceased, that he has a daughter named Lilia, that
Nenita was Agapito's guardian and that Marilyn was not Agapito's daughter nor the decedent's
granddaughter (pp. 52-68, Record of testate case). Later, they questioned the probate court's
jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other than Marilyn, were
claiming Marcelina's estate, he issued on April 23 an order probating her supposed will wherein
Marilyn was the instituted heiress (pp. 74-77, Record).
On April 24, Nenita filed in the testate case an omnibus petition "to set aside proceedings, admit
opposition with counter-petition for administration and preliminary injunction". Nenita in that motion
reiterated her allegation that Marilyn was a stranger to Marcelina, that the will was not duly executed
and attested, that it was procured by means of undue influence employed by Marina and Marilyn and
that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of the preterition of
Agapito and that Marina was not qualified to act as executrix (pp. 83-91, Record).
To that motion was attached an affidavit of Zenaida A. Penaojas the housemaid of Marcelina, who
swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18) and her omnibus
motion to set aside the proceedings (filed on April 24), Nenita filed the next day, April 25, an
opposition to the probate of the will and a counter-petition for letters of administration. In that
opposition, Nenita assailed the due execution of the will and stated the names and addresses of
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record). Nenita was not aware of
the decree of probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio, Marcelina's niece, who
swore that Marcelina never executed a win (pp. 124-125, Record).

Marina in her answer to Nenita's motion to set aside the proceedings admitted that Marilyn was not
Marcelina's granddaughter but was the daughter of Agapito and Arsenia de la Cruz and that Agapito
was not Marcelina's sonbut merely an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-petition for the issuance of
letters of administration because of the non-appearance of her counsel at the hearing. She moved
for the reconsideration of that order.
In a motion dated December 5, 1975, for the consolidation of all pending incidents, Nenita V. Suroza
reiterated her contention that the alleged will is void because Marcelina did not appear before the
notary and because it is written in English which is not known to her (pp. 208-209, Record).
Judge Honrado in his order of June 8, 1976 "denied" the various incidents "raised" by Nenita (p. 284,
Record).
Instead of appealing from that order and the order probating the wig, Nenita "filed a case to annul"
the probate proceedings (p. 332, Record). That case, Civil Case No. 24276, Suroza vs. Paje and
Honrado (p. 398, Record), was also assigned to Judge Honrado. He dismissed it in his order of
February 16, 1977 (pp. 398-402, Record).
Judge Honrado in his order dated December 22, 1977, after noting that the executrix had delivered
the estate to Marilyn, and that the estate tax had been paid, closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in this Court, Nenita
charged Judge Honrado with having probated the fraudulent will of Marcelina. The complainant
reiterated her contention that the testatrix was illiterate as shown by the fact that she affixed her
thumbmark to the will and that she did not know English, the language in which the win was written.
(In the decree of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the testatrix had a son
named Agapito (the testatrix's supposed sole compulsory and legal heir), who was preterited in the
will, did not take into account the consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed him that the
testatrix did not know the executrix Marina Paje, that the beneficiary's real name is Marilyn Sy and
that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina and her cohorts to
withdraw from various banks the deposits Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving her access to the
record of the probate case by alleging that it was useless for Nenita to oppose the probate since
Judge Honrado would not change his decision. Nenita also said that Evangeline insinuated that if
she (Nenita) had ten thousand pesos, the case might be decided in her favor. Evangeline allegedly
advised Nenita to desist from claiming the properties of the testatrix because she (Nenita) had no
rights thereto and, should she persist, she might lose her pension from the Federal Government.

Judge Honrado in his brief comment did not deal specifically with the allegations of the complaint.
He merely pointed to the fact that Nenita did not appeal from the decree of probate and that in a
motion dated July 6, 1976 she asked for a thirty day period within which to vacate the house of the
testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and that the latter did not
mention Evangeline in her letter dated September 11, 1978 to President Marcos.
Evangeline branded as a lie Nenita's imputation that she (Evangeline) prevented Nenita from having
access to the record of the testamentary proceeding. Evangeline was not the custodian of the
record. Evangeline " strongly, vehemently and flatly denied" Nenita's charge that she (Evangeline)
said that the sum of ten thousand pesos was needed in order that Nenita could get a favorable
decision. Evangeline also denied that she has any knowledge of Nenita's pension from the Federal
Government.
The 1978 complaint against Judge Honorado was brought to attention of this Court in the Court
Administrator's memorandum of September 25, 1980. The case was referred to Justice Juan A.
Sison of the Court of Appeals for investigation, report and recommendation. He submitted a report
dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge Honrado a petition for
certiorari and prohibition wherein she prayed that the will, the decree of probate and all the
proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized the will. He swore that
the testatrix and the three attesting witnesses did not appear before him and that he notarized the
will "just to accommodate a brother lawyer on the condition" that said lawyer would bring to the
notary the testatrix and the witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenita's remedy was an appeal and her failure
to do so did not entitle her to resort to the special civil action of certiorari (Suroza vs. Honrado, CAG.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to dismiss the
administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his improper
disposition of the testate case which might have resulted in a miscarriage of justice because the
decedent's legal heirs and not the instituted heiress in the void win should have inherited the
decedent's estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or interlocutory order or
rendering a manifestly unjust judgment or interlocutory order by reason of inexcusable negligence or
ignorance (Arts. 204 to 206, Revised Penal Code).
Administrative action may be taken against a judge of the court of first instance for serious
misconduct or inefficiency ( Sec. 67, Judiciary Law). Misconduct implies malice or a wrongful intent,
not a mere error of judgment. "For serious misconduct to exist, there must be reliable evidence
showing that the judicial acts complained of were corrupt or inspired by an intention to violate the

law, or were in persistent disregard of well-known legal rules" (In re lmpeachment of Horrilleno, 43
Phil. 212, 214-215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A judge would be
inexcusably negligent if he failed to observe in the performance of his duties that diligence, prudence
and circumspection which the law requires in the rendition of any public service (In re Climaco, Adm.
Case No. 134-J, Jan. 21, 1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was written in English and was
thumbmarked by an obviously illiterate testatrix, could have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language "understood and
known" to the testatrix. But in its concluding paragraph, it was stated that the will was read to the
testatrix "and translated into Filipino language". (p. 16, Record of testate case). That could only
mean that the will was written in a language not known to the illiterate testatrix and, therefore, it is
void because of the mandatory provision of article 804 of the Civil Code that every will must be
executed in a language or dialect known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial acknowledgment
where Marcelina Salvador Suroza is repeatedly referred to as the "testator" instead of "testatrix".
Had respondent judge been careful and observant, he could have noted not only the anomaly as to
the language of the will but also that there was something wrong in instituting the supposed
granddaughter as sole heiress and giving nothing at all to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent judge
could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally conducted the
hearing on the probate of the will so that he could have ascertained whether the will was validly
executed.
Under the circumstances, we find his negligence and dereliction of duty to be inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S. Suroza, a fine equivalent
to his salary for one month is imposed on respondent judge (his compulsory retirement falls on
December 25, 1981).
The case against respondent Yuipco has become moot and academic because she is no longer
employed in the judiciary. Since September 1, 1980 she has been assistant city fiscal of Surigao
City. She is beyond this Court's disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI
November 21, 1980, 101 SCRA 225).
SO ORDERED.

ART 805
EN BANC

G.R. No. L-13431

November 12, 1919

In re will of Ana Abangan.

GERTRUDIS ABANGAN, executrix-appellee,
vs.
ANASTACIA ABANGAN, ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.

AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will
executed July, 1916. From this decision the opponent's appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which
contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the
name and under the direction of the testatrix) and by three witnesses. The following sheet contains
only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of
these sheets is signed on the left margin by the testatrix and the three witnesses, nor numbered by
letters; and these omissions, according to appellants' contention, are defects whereby the probate of
the will should have been denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the
testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable
in the case) evidently has for its object (referring to the body of the will itself) to avoid the substitution
of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are
wholly written on only one sheet signed at the bottom by the testator and three witnesses (as the
instant case), their signatures on the left margin of said sheet would be completely purposeless. In
requiring this signature on the margin, the statute took into consideration, undoubtedly, the case of a
will written on several sheets and must have referred to the sheets which the testator and the
witnesses do not have to sign at the bottom. A different interpretation would assume that the statute
requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the
statute such an intention. As these signatures must be written by the testator and the witnesses in
the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its
authenticity, another signature on its left margin would be unneccessary; and if they do not guaranty,
same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that
the statute regards of such importance the place where the testator and the witnesses must sign on
the sheet that it would consider that their signatures written on the bottom do not guaranty the
authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on
the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any
sheet of the will has been removed. But, when all the dispositive parts of a will are written on one
sheet only, the object of the statute disappears because the removal of this single sheet, although
unnumbered, cannot be hidden.

What has been said is also applicable to the attestation clause. Wherefore, without considering
whether or not this clause is an essential part of the will, we hold that in the one accompanying the
will in question, the signatures of the testatrix and of the three witnesses on the margin and the
numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring
specially to the signature of the testatrix, we can add that same is not necessary in the attestation
clause because this, as its name implies, appertains only to the witnesses and not to the testator
since the latter does not attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three witnesses and
the second contains only the attestation clause and is signed also at the bottom by the three
witnesses, it is not necessary that both sheets be further signed on their margins by the testator and
the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordal
ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the
law to restrain and curtail the exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds nothing but demands more
requisites entirely unnecessary, useless and frustative of the testator's last will, must be
disregarded.
lawphil.net

As another ground for this appeal, it is alleged the records do not show that the testarix knew the
dialect in which the will is written. But the circumstance appearing in the will itself that same was
executed in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is
enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which
this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against
the appellants. So ordered.
EN BANC
G.R. No. L-18979

June 30, 1964

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE JOSEFA VILLACORTE.

CELSO ICASIANO, petitioner-appellee,
vs.
NATIVIDAD ICASIANO and ENRIQUE ICASIANO, oppositors-appellants.
Jose W. Diokno for petitioner-appellee.
Rosendo J. Tansinin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:

Appeal from an order of the Court of First Instance of Manila admitting to probate the document and
its duplicate, marked as Exhibits "A" and "A-1", as the true last will and testament of Josefa
Villacorte, deceased, and appointing as executor Celso Icasiano, the person named therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the allowance and
admission to probate of the original, Exhibit "A" as the alleged will of Josefa Villacorte, deceased,
and for the appointment of petitioner Celso Icasiano as executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused notice thereof to be
published for three (3) successive weeks, previous to the time appointed, in the newspaper "Manila
chronicle", and also caused personal service of copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her opposition; and on
November 10, 1958, she petitioned to have herself appointed as a special administrator, to which
proponent objected. Hence, on November 18, 1958, the court issued an order appointing the
Philippine Trust Company as special administrator.
1wph1.t

On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a manifestation adopting as
his own Natividad's opposition to the probate of the alleged will.
On March 19, 1959, the petitioner proponent commenced the introduction of his evidence; but on
June 1, 1959, he filed a motion for the admission of an amended and supplemental petition, alleging
that the decedent left a will executed in duplicate with all the legal requirements, and that he was, on
that date, submitting the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about
May 26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique Icasiano
filed their joint opposition to the admission of the amended and supplemental petition, but by order of
July 20, 1959, the court admitted said petition, and on July 30, 1959, oppositor Natividad Icasiano
filed her amended opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to probate. From this
order, the oppositors appealed directly to this Court, the amount involved being over P200,000.00,
on the ground that the same is contrary to law and the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte died in the City of
Manila on September 12, 1958; that on June 2, 1956, the late Josefa Villacorte executed a last will
and testament in duplicate at the house of her daughter Mrs. Felisa Icasiano at Pedro Guevara
Street, Manila, published before and attested by three instrumental witnesses, namely: attorneys
Justo P. Torres, Jr. and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before attorney Jose
Oyengco Ong, Notary Public in and for the City of Manila; and that the will was actually prepared by
attorney Fermin Samson, who was also present during the execution and signing of the decedent's
last will and testament, together with former Governor Emilio Rustia of Bulacan, Judge Ramon
Icasiano and a little girl. Of the said three instrumental witnesses to the execution of the decedent's
last will and testament, attorneys Torres and Natividad were in the Philippines at the time of the
hearing, and both testified as to the due execution and authenticity of the said will. So did the Notary
Public before whom the will was acknowledged by the testatrix and attesting witnesses, and also
attorneys Fermin Samson, who actually prepared the document. The latter also testified upon cross
examination that he prepared one original and two copies of Josefa Villacorte last will and testament
at his house in Baliuag, Bulacan, but he brought only one original and one signed copy to Manila,
retaining one unsigned copy in Bulacan.

The records show that the original of the will, which was surrendered simultaneously with the filing of
the petition and marked as Exhibit "A" consists of five pages, and while signed at the end and in
every page, it does not contain the signature of one of the attesting witnesses, Atty. Jose V.
Natividad, on page three (3) thereof; but the duplicate copy attached to the amended and
supplemental petition and marked as Exhibit "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the original of the will and
its duplicate were subscribed at the end and on the left margin of each and every page thereof by
the testatrix herself and attested and subscribed by the three mentioned witnesses in the testatrix's
presence and in that of one another as witnesses (except for the missing signature of attorney
Natividad on page three (3) of the original); that pages of the original and duplicate of said will were
duly numbered; that the attestation clause thereof contains all the facts required by law to be recited
therein and is signed by the aforesaid attesting witnesses; that the will is written in the language
known to and spoken by the testatrix that the attestation clause is in a language also known to and
spoken by the witnesses; that the will was executed on one single occasion in duplicate copies; and
that both the original and the duplicate copies were duly acknowledged before Notary Public Jose
Oyengco of Manila on the same date June 2, 1956.
Witness Natividad who testified on his failure to sign page three (3) of the original, admits that he
may have lifted two pages instead of one when he signed the same, but affirmed that page three (3)
was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the signatures of the
testatrix in the duplicate (Exhibit "A-1") are not genuine nor were they written or affixed on the same
occasion as the original, and further aver that granting that the documents were genuine, they were
executed through mistake and with undue influence and pressure because the testatrix was
deceived into adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances surrounding the
execution of the will and the provisions and dispositions thereof, whereby proponents-appellees
stand to profit from properties held by them as attorneys-in-fact of the deceased and not enumerated
or mentioned therein, while oppositors-appellants are enjoined not to look for other properties not
mentioned in the will, and not to oppose the probate of it, on penalty of forfeiting their share in the
portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the testatrix signed both
original and duplicate copies (Exhibits "A" and "A-1", respectively) of the will spontaneously, on the
same in the presence of the three attesting witnesses, the notary public who acknowledged the will;
and Atty. Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the witnesses, and
read to and by the testatrix and Atty. Fermin Samson, together before they were actually signed; that
the attestation clause is also in a language known to and spoken by the testatrix and the witnesses.
The opinion of expert for oppositors, Mr. Felipe Logan, that the signatures of the testatrix appearing
in the duplicate original were not written by the same had which wrote the signatures in the original
will leaves us unconvinced, not merely because it is directly contradicted by expert Martin Ramos for
the proponents, but principally because of the paucity of the standards used by him to support the
conclusion that the differences between the standard and questioned signatures are beyond the
writer's range of normal scriptural variation. The expert has, in fact, used as standards only three
other signatures of the testatrix besides those affixed to the original of the testament (Exh. A); and

we feel that with so few standards the expert's opinion and the signatures in the duplicate could not
be those of the testatrix becomes extremely hazardous. This is particularly so since the comparison
charts Nos. 3 and 4 fail to show convincingly that the are radical differences that would justify the
charge of forgery, taking into account the advanced age of the testatrix, the evident variability of her
signatures, and the effect of writing fatigue, the duplicate being signed right the original. These,
factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and questioned signatures
does not appear reliable, considering the standard and challenged writings were affixed to different
kinds of paper, with different surfaces and reflecting power. On the whole, therefore, we do not find
the testimony of the oppositor's expert sufficient to overcome that of the notary and the two
instrumental witnesses, Torres and Natividad (Dr. Diy being in the United States during the trial, did
not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some heirs are more
favored than others is proof of neither (see In re Butalid, 10 Phil. 27; Bugnao vs. Ubag, 14 Phil. 163;
Pecson vs. Coronal, 45 Phil. 216). Diversity of apportionment is the usual reason for making a
testament; otherwise, the decedent might as well die intestate. The testamentary dispositions that
the heirs should not inquire into other property and that they should respect the distribution made in
the will, under penalty of forfeiture of their shares in the free part do not suffice to prove fraud or
undue influence. They appear motivated by the desire to prevent prolonged litigation which, as
shown by ordinary experience, often results in a sizeable portion of the estate being diverted into the
hands of non-heirs and speculators. Whether these clauses are valid or not is a matter to be litigated
on another occassion. It is also well to note that, as remarked by the Court of Appeals in Sideco vs.
Sideco, 45 Off. Gaz. 168, fraud and undue influence are mutually repugnant and exclude each other;
their joining as grounds for opposing probate shows absence of definite evidence against the validity
of the will.
On the question of law, we hold that the inadvertent failure of one witness to affix his signature to
one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not
per se sufficient to justify denial of probate. Impossibility of substitution of this page is assured not
only the fact that the testatrix and two other witnesses did sign the defective page, but also by its
bearing the coincident imprint of the seal of the notary public before whom the testament was ratified
by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to
penalize the testatrix on account of the inadvertence of a single witness over whose conduct she
had no control, where the purpose of the law to guarantee the identity of the testament and its
component pages is sufficiently attained, no intentional or deliberate deviation existed, and the
evidence on record attests to the full observance of the statutory requisites. Otherwise, as stated
in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on reconsideration) "witnesses
may sabotage the will by muddling or bungling it or the attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through pure oversight is
shown by his own testimony as well as by the duplicate copy of the will, which bears a complete set
of signatures in every page. The text of the attestation clause and the acknowledgment before the
Notary Public likewise evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal application of the
statutory requirements, where the purposes of the law are otherwise satisfied. Thus, despite the
literal tenor of the law, this Court has held that a testament, with the only page signed at its foot by

testator and witnesses, but not in the left margin, could nevertheless be probated (Abangan vs.
Abangan, 41 Phil. 476); and that despite the requirement for the correlative lettering of the pages of
a will, the failure to make the first page either by letters or numbers is not a fatal defect (Lopez vs.
Liboro, 81 Phil. 429). These precedents exemplify the Court's policy to require satisfaction of the
legal requirements in order to guard against fraud and bid faith but without undue or unnecessary
curtailment of the testamentary privilege.
The appellants also argue that since the original of the will is in existence and available, the
duplicate (Exh. A-1) is not entitled to probate. Since they opposed probate of original because it
lacked one signature in its third page, it is easily discerned that oppositors-appellants run here into a
dilemma; if the original is defective and invalid, then in law there is no other will but the duly signed
carbon duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be probated,
then the objection to the signed duplicate need not be considered, being superfluous and irrelevant.
At any rate, said duplicate, Exhibit A-1, serves to prove that the omission of one signature in the third
page of the original testament was inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a new publication does
not affect the jurisdiction of the probate court, already conferred by the original publication of the
petition for probate. The amended petition did not substantially alter the one first filed, but merely
supplemented it by disclosing the existence of the duplicate, and no showing is made that new
interests were involved (the contents of Exhibit A and A-1 are admittedly identical); and appellants
were duly notified of the proposed amendment. It is nowhere proved or claimed that the amendment
deprived the appellants of any substantial right, and we see no error in admitting the amended
petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with costs against
appellants.
EN BANC
G.R. No. L-6285

February 15, 1912

PEDRO BARUT, petitioner-appellant,

vs.
FAUSTINO CABACUNGAN, ET AL., opponents-appellees.
A. M. Jimenez for appellant.
Ramon Querubin for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro Barut and another,
No. 6284,1just decided by this court, wherein there was an application for the probate of an alleged
last will and testament of the same person the probate of whose will is involved in this suit.
This appeal arises out of an application on the part of Pedro Barut to probate the last will and
testament of Maria Salomon, deceased. It is alleged in the petition of the probate that Maria
Salomon died on the 7th day of November, 1908, in the pueblo of Sinait, Ilocos Sur, leaving a last
will and testament bearing date March 2, 1907. Severo Agayan, Timotea Inoselda, Catalino Ragasa,

and A. M. Jimenez are alleged to have been witnesses to the execution thereof. By the terms of said
will Pedro Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its translation into
Spanish appears at page 11. After disposing of her property the testatrix revoked all former wills by
her made. She also stated in said will that being unable to read or write, the same had been read to
her by Ciriaco Concepcion and Timotea Inoselda and that she had instructed Severo Agayan to sign
her name to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of the deceased on
various grounds, among them that a later will had been executed by the deceased. The will referred
to as being a later will is the one involved in case No. 6284 already referred to. Proceeding for the
probate of this later will were pending at the time. The evidence of the proponents and of the
opponents was taken by the court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not entitled to probate upon
the sole ground that the handwriting of the person who it is alleged signed the name of the testatrix
to the will for and on her behalf looked more like the handwriting of one of the other witnesses to the
will than that of the person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the uncontradicted
testimony of all the witnesses to the will that the signature of the testatrix was written by Severo
Agayan at her request and in her presence and in the presence of all the witnesses to the will. It is
immaterial who writes the name of the testatrix provided it is written at her request and in her
presence and in the presence of all the witnesses to the execution of the will.
The court seems , by inference at least, to have had in mind that under the law relating to the
execution of a will it is necessary that the person who signs the name of the testatrix must
afterwards sign his own name; and that, in view of the fact that, in the case at bar, the name signed
below that of the testatrix as the person who signed her name, being, from its appearance, not the
same handwriting as that constituting the name of the testatrix, the will is accordingly invalid, such
fact indicating that the person who signed the name of the testatrix failed to sign his own. We do not
believe that this contention can be sustained. Section 618 of the Code of Civil Procedure reads as
follows:
No will, except as provided in the preceding section, shall be valid to pass any estate, real or
personal, nor charge or effect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his expenses
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each. . . .
This is the important part of the section under the terms of which the court holds that the person who
signs the name of the testator for him must also sign his own name The remainder of the section
reads:
The attestation shall state the fact that the testator signed the will, or caused it to be signed
by some other person, at his express direction, in the presence of three witnesses, and that
they attested and subscribed it in his presence and in the presence of each other. But the
absence of such form of attestation shall not render the will invalid if it is proven that the will
was in fact signed and attested as in this section provided.
From these provisions it is entirely clear that, with respect to the validity of the will, it is unimportant
whether the person who writes the name of the testatrix signs his own or not. The important thing is

that it clearly appears that the name of the testatrix was signed at her express direction in the
presence of three witnesses and that they attested and subscribed it in her presence and in the
presence of each other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that it is not essential to the validity of the
will. Whether one parson or another signed the name of the testatrix in this case is absolutely
unimportant so far as the validity of her will is concerned. The plain wording of the statute shows that
the requirement laid down by the trial court, if it did lay down, is absolutely unnecessary under the
law; and the reasons underlying the provisions of the statute relating to the execution of wills do not
in any sense require such a provision. From the standpoint of language it is an impossibility to draw
from the words of the law the inference that the persons who signs the name of the testator must
sign his own name also. The law requires only three witnesses to a will, not four.
Nor is such requirement found in any other branch of the law. The name of a person who is unable
to write may be signed by another by express direction to any instrument known to the law. There is
no necessity whatever, so far as the validity of the instrument is concerned, for the person who
writes the name of the principal in the document to sign his own name also. As a matter of policy it
may be wise that he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal. But as a matter of
essential validity of the document, it is unnecessary. The main thing to be established in the
execution of the will is the signature of the testator. If that signature is proved, whether it be written
by himself or by another at his request, it is none the less valid, and the fact of such signature can be
proved as perfectly and as completely when the person signing for the principal omits to sign his
own name as it can when he actually signs. To hold a will invalid for the lack of the signature of the
person signing the name of the principal is, in the particular case, a complete abrogation of the law
of wills, as it rejects and destroys a will which the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the doctrine which we
have herein laid down. They are Ex parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas (4 Phil.
Rep., 700), and Guison vs.Concepcion (5 Phil. Rep., 551). Not one of these cases is in point. The
headnote in the case last above stated gives an indication of what all of cases are and the question
involved in each one of them. It says:
The testatrix was not able to sign it for her. Instead of writing her name he wrote his own
upon the will.Held, That the will was not duly executed.
All of the above cases are precisely of this character. Every one of them was a case in which the
person who signed the will for the testator wrote his own name to the will instead of writing that of
the testator, so that the testator's name nowhere appeared attached to the will as the one who
executed it. The case of Ex parte Arcenas contains the following paragraph:
Where a testator does not know, or is unable for any reason, to sign the will himself, it shall
be signed in the following manner: "John Doe, by the testator, Richard Roe;" or in this form:
"By the testator. John Doe, Richard Roe." All this must be written by the witness signing at
the request of the testator.
The only question for decision in that case, as we have before stated, was presented by the fact that
the person who was authorized to sign the name of the testator to the will actually failed to sign such
name but instead signed his own thereto. The decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this case have set forth
no reason whatever why the will involved in the present litigation should not be probated. The due
and legal execution of the will by the testatrix is clearly established by the proofs in this case. Upon

the facts, therefore, the will must be probated. As to the defense of a subsequent will, that is
resolved in case No. 6284 of which we have already spoken. We there held that said later will not
the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court is directed to enter
an order in the usual form probating the will involved in this litigation and to proceed with such
probate in accordance with law.
Arellano, C.J., Mapa and Carson, JJ., concur.

Separate Opinions
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does not
expressly require that, when the testator or testatrix is unable or does not know how to sign, the
person who, in the presence and under the express direction of either of them, writes in the name of
the said testator or testatrix must also sign his own name thereto, it being sufficient for the validity of
the will that the said person so requested to sign the testator or testatrix write the name of either in
his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of wills
executed in accordance with the provisions of the Code of Civil Procedure, never has the specific
point just above mentioned been brought into question. Now for the first time is affirmed in the
majority opinion, written by the learned and distinguished Hon. Justice Moreland, that, not being
required by the said code, the signature of the name of the person who, at the request of the testator
or testatrix, writes the name of either of the latter to the will executed, is not necessary.
Various and considerable in number have been the decisions rendered by this court in which, as will
be seen further on, upon applying the said section 618 of Code of Civil Procedure and requiring its
observance in cases where the testator or testatrix is unable or does not know how to sign his or her
name, expressly prescribed the practical method of complying with the provisions of the law on the
subject. Among these decisions several were written by various justices of this court, some of whom
are no longer on this bench, as they have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parte Delfin Santiago,1 concerning the probate of a
will, reads as follows:
Wills, authentication of . Where a will is not signed by a testator but by some other person
in his presence and by his direction, such other person should affix the name of the testator
thereto, and it is not sufficient that he sign his own name for and instead of the name of the
testator.
Paragraph 1 of the syllabus of case No. 1708, Ex parte Arcenas,2 in the matter of the probate of a
will, states:
1. Wills, requisites of; Civil Code, article repealed. Article 695 of the Civil Procedure;
consequently where a testator is unable to sign his name, the person signing at his request

must write at the bottom of the will the full name of the testator in the latter's presence, and
by his express direction, and then sign his own name in full.
In the syllabus of decision No. 2586, Tomas Guison vs. Maria Concepcion,3 the following statements
appear:
Wills; inability to sign; signature by another. The testatrix was not able to sign her name to
the will, and she requested another person to sign it for her. Held, That the will was not duly
executed. (Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Arcenas
et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August 18, 1905.)
The following syllabus precedes decision No. 3907:4
Execution of wills. Where it appears in a will that the testator has stated that by reason of
his inability to sign his name he requested one of the three witnesses present to do so, and
that as a matter of fact, the said witness wrote the name and surname of the testator who,
stating that the instrument executed by him contained his last will, put the sign of the cross
between his said name and surname, all of which details are set forth in a note which the
witnesses forthwith subscribed in the presence of the testator and of each other, said will
may be probated.
When the essential requisites of section 618 of the Code of Civil Procedure for the execution
and validity of a will have been complied with, the fact that the witness who was requested to
sign the name of the testator, omitted to state the words 'by request of .......... the testator,'
when writing with his own hand the name and surname of the said testator, and the fact that
said witness subscribed his name together with the other witnesses and not below the name
of the testator, does not constitute a defect nor invalidate the said will.
The following statement appears in the syllabus of case No. 4132, in the matter of the will of Maria
Siason:5
The recital of the name of the testator as written below the will at his request serves as a
signature by a third person.
Moreover among the grounds given as a basis for this same decision, the following appears:
In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs.
Zalamero. In the Arcenas case the court pointed out the correct formula for a signature which
ought to be followed, but did not mean to exclude any other for substantially equivalent.
In the syllabus of decision No. 4454,6 Ex parte Ondevilla et al., the following appears:
The testatrix was unable to sign her will with her own hand and requested another person to
sign for her in her presence. This the latter did, first writing the name of the testatrix and
signing his own name below:Held, That the signature of the testatrix so affixed is sufficient
and a will thus executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)
The syllabus of decision No. 51497 sets forth that:

The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity.
Among the conclusions contained in this last decision the following is found:
Although the said words "For Simplicia de los Santos" be considered as inserted
subsequently, which we neither affirm nor deny, because a specific determination either way
is unnecessary, in our opinion the signature for the testatrix placed outside of the body of the
will contains the name of the testatrix as if she signed the will, and also the signature of the
witness who, at her request, wrote the name of the testatrix and signed for her, affirming the
truth of this fact, attested by the other witnesses then present. And this fully complies with the
provisions of section 618 of the Act.
It is true that in none of the decisions above quoted was the rule established that the person who, at
the request of the testator or testatrix, signed the latter's or the former's name and surname to the
will must affix his own signature; but it no less true that, in prescribing the method in which the
provisions of the said section 618 to be complied with, it was stated that, in order that a will so
executed might be admitted to probate, it was an indispensable requisite that the person requested
to sign in place of the testator or testatrix, should write the latter's or the former's name and surname
at the foot of the will in the presence and under the direction of either, as the case might be, and
should afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or testatrix at the
foot of the will should likewise affix his own signature thereto, name and surname, though it be
considered to be neither a rule nor a requisite necessary to follow for the admission of the will to
probate, yet it is unquestionable that, in inserting this last above-mentioned detail in the aforesaid
decisions, it was deemed to be a complement and integral part of the required conditions for the
fulfillment of the provisions of the law.
It is undisputable that the latter does not require the said subscription and signature of the person
requested to affix to the will the name of the testator or testatrix who is not able to sign; but by stating
in the decisions hereinabove quoted that the name and surname of the said person should be
affixed by him, no act prohibited by law was recommended or suggested, nor may such a detail be
understood to be contrary or opposed to the plain provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to require that the
person requested to write the name of the testator or testatrix in the will also sign the instrument with
his own name and surname. This statement induces us to believe that, in behalf of the inhabitants of
this country and for sake of an upright administration of justice, it should be maintained that such a
signature must appear in the will, since no harm could accrue to anyone thereby and, on the
contrary, it would serve as a guarantee of the certainty of the act performed and also might eliminate
some possible cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal of article
695 of the Civil Code and, while he conceded that, in the examination and qualification of a will for
the purpose of its probate, one has but to abide by the provisions of said section 618 of the Code of
Civil Procedure, the sole law applicable in the matter, yet, perhaps imbued with the strongly impelled
by a traditional conception of the laws which he has known since youth, relative to the form of
execution of testaments, he believed it to be a vary natural and common sense requisite that the
signature, with his own name and surname, of the person requested to write in the will the name and

surname of the testator or testatrix should form a part of the provisions of the aforementioned
section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of the person
before referred to a requisite deemed to be convenient and prudent in the majority opinion
formed a part of the provisions of the law, since the latter contains nothing that prohibits it. The
aforementioned different decisions were drawn up in the form in which they appear, and signed
without dissent by all the justices of the court on various dates. None of them hesitated to sign the
decisions, notwithstanding that it was expressly held therein that the person above mentioned
should, besides writing in the will the name and surname of the testator or testatrix, also sign the
said instrument with his own name and surname.
Without being understood to criticize the provision contained in the said section 618 of the Code of
Civil Procedure it will not be superfluous to mention that the system adopted in this section is the
same as was in vogue under the former laws that governed in these Islands, with respect to
witnesses who were not able or did not know how to sign their testimony given in criminal or civil
cases, in which event any person at all might write the name and surname of the witness who was
unable or did not know how to sign, at the foot of his deposition, where a cross was then drawn, and,
this done, it was considered that the instrument had been signed by the witness, though it is true that
all these formalities were performed before the judge and the clerk or secretary of the court, which
thereupon certified that such procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure, the person
who writes the name and surname of the testator or testatrix does so by the order and express
direction of the one or of the other, and this fact must be recorded in the will; but in the matter of the
signature of a deposition, the witness, who could not or did not know how to sign, did not need to
designate anyone to write the deponent's name and surname, and in practice the witness merely
made a cross beside his name and surname, written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous statutes, among
them those of the Civil Code, the person or witness requested by the testator or testatrix who was
not able or did not know how to sign, authenticated the will by signing it with his own name and
surname, preceded by the words "at the request of the testator or testatrix." Paragraph 2 of article
695 of the Civil Code contains the following provisions bearing on the subject:
Should the testator declare that he does not know how, or is not able to sign, one of the
attesting witnesses or another person shall do so for him at his request, the notary certifying
thereto. This shall be done if any one of the witnesses can not sign.
So that, prior to the enforcement in this country in 1901 of the Code of Civil procedure prescribed by
the old laws with respect to the signing of a will by a testator or testatrix who did not know how or
who could not sign, consisted in that the person appointed and requested by the testator or testatrix
to sign in his or her stead, such fact being recorded in the will, merely affixed at the bottom of the will
and after the words "at the request of the testator," his own name, surname and paragraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by these legal
provisions, which it may said, are traditional to them in the ideas they have formed of the existing
laws in the matter of procedure in compliance therewith as regards the execution and signing of a
will, should have believed that, after the name and surname of the testator or testatrix had been
written at the foot of the will, the person who signed the instrument in the manner mentioned should
likewise sign the same with his own name and surname.

If in various decisions it has been indicated that the person who, under the express direction of the
testator or testatrix, wrote the latter's or the former's name and surname, should also sign the will
with his own name and surname, and since this suggestion is not opposed or contrary to the law, the
undersigned is of opinion that it ought not to be modified or amended, but that, on the contrary, it
should be maintained as a requisite established by the jurisprudence of this court, inasmuch as such
a requisite is not contrary to law, to public order, or to good custom, is in consonance with a tradition
of this country, does not prejudice the testator nor those interested in an inheritance, and, on the
contrary, constitutes another guarantee of the truth and authenticity of the letters with which the
name and surname of the testator of testatrix are written, in accordance with his or her desire as
expressed in the will.
Even though the requisites referred to were not recognized in jurisprudence and were unsupported
by any legal doctrine whatever, yet, since it is in harmony with the juridical usages and customs
observed in this country, it ought, in the humble opinion of the writer, to be maintained for the benefit
of the inhabitants of the Islands and for the sake of a good administration of justice, because it is not
a question of a dangerous innovation or of one prejudicial to the public good, but a matter of the
observance of a convenient, if not a necessary detail, introduced by the jurisprudence of the courts
and which in the present case has filed a vacancy left by the positive written law.
The foregoing considerations, which perhaps have not the support of better premises, but in the
opinion of the undersigned, are conducive to the realization of the purposes of justice, have impelled
him to believe that the proposition should be enforced that the witness requested or invited by the
testator or testatrix to write his or her name to the will, should also subscribed the instrument by
signing thereto his own name and surname; and therefore, with the proper finding in this sense, and
reversal of the judgment appealed from, that the court below should be ordered to proceed with the
probate of the will of the decedent, Maria Salomon, in accordance with the law.
EN BANC
G.R. No. L-20475

March 19, 1924

In re will of TAN DIUCO, deceased. MAMERTA BASE, petitioner-appellant.

C.K. Langleon for petitioner and appellant.
ARAULLO, C.J.:
On March 3, 1921, Mamerta Base instituted this proceeding in the Court of First Instance of Leyte for
the probate of the will, Exhibit A, executed, according to her, by the Chinaman Tan Diuco, a resident
of the municipality of Malitbog of said province, who died on December 8, 1920. That court denied
the probate of the will on November 2, 1922, and the petitioner brought the case on appeal to this
court, alleging that the lower court erred in holding that said will was not signed by three instrumental
witnesses and in not allowing it to probate.
After a hearing on the petition, the Court of First Instance entered the order appealed from, in which
it is found that said will was executed with all the solemnities prescribed by Act No. 2645, except that
it was not signed by three instrumental witnesses beside the signature of the testator and before the
attestation clause, and this fact is the ground upon which the petition was denied.

The document in question, Exhibit A, appears to have been signed by Simplicio Sala by order of the
testator, whose name is before the said signature, by reason of the latter's incapacity on account of
his weakness and the trembling of his hand, the testator also stating that he directed said Simplicio
Sala to sign it in his name and in the presence of three witnesses who also signed with him at the
bottom of said document, and on the left margin of each of its three pages correlatively numbered in
letters by Sala in the name of the testator Tan Diuco and by the witnesses therein mentioned, named
Pablo Maturan, Ladislao Fenomeno, and Enrique Pearedondo. After the signature of the testator,
Tan Diuco by Simplicio Sala, the following paragraph appears:
We, the undersigned witnesses to the forgoing will, do hereby state that the testator signed
this will and each of its sheets in the presence of all and each of us, and we and each of us
likewise did sign this will and all of its sheets in the presence of the testator and each of us,
witnesses.
"TAN DIUCO
By "SIMPLICIO SALA
"LADISLAO FENOMENO
"PABLO MATURAN
"ENRIQUE PEAREDONDO"
Section 618 of the Code of Civil Procedure, as amended by Act No. 2645, provides, indeed, among
the necessary requirements before a will can be probated, that it be attested and signed by three or
more credible witnesses in the presence of the testator and of each other. And said section, as
amended, further provides as follows:
* * * The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, on the left
margin, and said pages shall be numbered correlatively in letters placed on the upper part of
each sheet. The attestation shall state the number of sheets or pages used, upon which the
will is written, and that fact that the testator signed the will and every page thereof, or caused
some other person to write his name, under his express direction, in the presence of three
witnesses, and the latter witnessed and signed the will and all pages thereof in the presence
of the testator and of each other.
Instrumental witness, as defined by Escriche in his Diccionario Razonado de Legislacion y
Jurisprudencia, volume 4, page 1115, is one who takes part in the execution of an instrument or
writing.
At present and under the laws now in force, particularly Act No. 2645 amendatory to said section 618
of the Code of Civil Procedure, when a will is to be executed, the testator draws or writes it
personally or through another person and signs it also personally, or if he is physically incapacitated,
as in the instant case, through another person who may or may not be the one who prepared or
wrote the will, that is, the document constituting the testator's last will and testament. The will having
thus been prepared and before it is signed by the testator or the person acting in his stead, or the
one directed by him to sign it in his name, in which case the name of the testator is written before
that of the signer, as above stated, in order that said document may have the character of a valid
will, the testator gathers three or more credible witnesses and tells them that the contents of said
document is his will, without informing them of its contents, and then the testator, or the person
directed by him to do so, signs it in the presence of the testator and of each other, and the testator or

the person acting in his stead, as well as the three witnesses sign on the left margin of each page or
sheet, which must be numbered correlatively in letters on the upper part of the page. These
witnesses are the witnesses, referred to in the aforesaid law as instrumental witnesses, for the
simple reason that they took part in the execution of an instrument or document known as will, their
participation being limited to the acts aforementioned.
In dealing with attestation, said section 618 of the Code of Civil Procedure, as amended by Act No.
2645, does not say that said witnesses must be different from those who signed the attestation
clause, for in the first part of said section, after speaking of the signature of the testator or the person
signing in his place, it adds, "and attested and subscribed by three or more credible witnesses in the
presence of the testator and of each other," from which it clearly follows that the same witnesses
who signed on the left margin of each page of the document presented by the testator to them as his
will, must be the ones who should sign the attestation clause, inasmuch as they alone can certify the
facts to be stated in said clause, for having taken a direct part therein, as they saw the testator sign
the will, or the person requested by him to sign all the sheets of the will, that is, the document
constituting his last will and testament, and affirm that it was signed under his express direction in
the presence of said witnesses and that all the sheets thereof had also been signed by them in the
presence of said testator and of each of them, as stated in the attestation clause of the will of the
deceased Tan Diuco, with the other details appropriate in said clause.
Besides, as may be seen, the said three witnesses who signed the attestation clause, did so also on
the left margin and beside the signature of the testator or of Simplicio Sala who signed by order of
the latter, and if account is taken of the fact that these witnesses are "instrumental" witnesses, as
above demonstrated, and they have made reference to their own signatures, as well as that of the
testator and of the person who signed by the latter's order below the attestation clause, it is evident
that in the instant case, it is merely a matter of technicality devoid of any importance as to the
probate of the will that said witnesses are called instrumental witnesses, as if they were different
from those who have to sign the attestation clause, for all of them are but the same witnesses; and,
as this court held in the case of Abangan vs. Abangan (40 Phil., 476), "The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their truth and authenticity. Therefore the laws
on this subject should be interpreted in such a way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when a interpretation already given assures such
ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustative of the testator's last will, must be disregarded;" which doctrine
must be applied in this case, in view of the facts herein mentioned and what has been above
demonstrated.
For all of the foregoing, the order appealed from is reversed, and the document, Exhibit A, presented
by the proponent as the last will and testament of the deceased Tan Diuco is admitted to probate,
without special finding as to costs of both instances. So ordered.
EN BANC
[G.R. No. 9150. March 31, 1915. ]
MARIANO LEANO, Petitioner-Appellant, v. ARCADIO LEAO, objector-appellee.
Vicente Llanes for Appellant.

Severo Hernando for Appellee.

SYLLABUS
1. WILLS; SIGNATURE BY MARK. The right of a testatrix to sign her will by mark, executed animo
testandi, sustained.
2. ID., ID. The placing of a cross, by a testatrix, opposite her name attached to an instrument purporting
to be her last will and testament is a sufficient compliance with the requirements of section 618 of the Code
of Civil Procedure as to the form and manner in which such instruments should be signed.

DECISION

CARSON, J. :

The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her cross against her
name attached by some other person to the instrument offered for probate which purports to be her last will
and testament, in the presence of the three witnesses whose names are attached to the attesting clause,
and that they attested and subscribed the instrument in her presence and in the presence of each other.
We are of the opinion that the placing of the cross opposite her name at the conclusion of the instrument
was a sufficient compliance with the requirements of section 618 of the Code of Civil Procedure, which
prescribes that except where wills are signed by some other person than the testator in the manner and
form therein indicated, a valid will must be signed by the testator. The right of a testator to sign his will by
mark, executed animo testandi, has been uniformly sustained by the courts of last resort of the United
States in construing statutory provisions prescribing the mode of execution of wills in language identical
with, or substantially similar to that found in section 618 of our code, which was taken from section 2349 of
the Code of Vermont. (Page on Wills, par. 173, and the cases there cited in support of the doctrine just
announced.)
The trial judge was of contrary opinion, and declined to admit the instrument to probate as the last will and
testament of the decedent. We are of opinion. however, that the evidence of record satisfactorily establishes
the execution of that instrument as and for her last will and testament in the manner and form prescribed by
law.
The judgment entered in the court below should therefore be reversed, without costs in this instance, and
the record remanded to the court below, where judgment will be entered admitting the instrument in
question to probate in accordance with the prayer of the petitioner. So ordered.

EN BANC
G.R. No. L-4067

November 29, 1951

In the Matter of the will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner,
vs.
JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.
PARAS, C.J.:

This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado
dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation
clause:
We, the undersigned, by these presents to declare that the foregoing testament of Antero
Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this
attestation clause; this will is written in Ilocano dialect which is spoken and understood by the
testator, and it bears the corresponding number in letter which compose of three pages and
all them were signed in the presence of the testator and witnesses, and the witnesses in the
presence of the testator and all and each and every one of us witnesses.
In testimony, whereof, we sign this statement, this the third day of January, one thousand
nine hundred forty three, (1943) A.D.

(Sgd.) NUMERIANO EVANGELISTA

(Sgd.) "ROSENDA CORTES

(Sgd.) BIBIANA ILLEGIBLE

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero
Mercado, followed below by "A reugo del testator" and the name of Florentino Javier. Antero
Mercado is alleged to have written a cross immediately after his name. The Court of Appeals,
reversing the judgement of the Court of First Instance of Ilocos Norte, ruled that the attestation
clause failed (1) to certify that the will was signed on all the left margins of the three pages and at the
end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the
testator and each and every one of the witnesses; (2) to certify that after the signing of the name of
the testator by Atty. Javier at the former's request said testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3)
to certify that the three witnesses signed the will in all the pages thereon in the presence of the
testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado
caused Atty. Florentino Javier to write the testator's name under his express direction, as required by
section 618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of
certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such
recital because the cross written by the testator after his name is a sufficient signature and the
signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a
signature as a thumbmark, the latter having been held sufficient by this Court in the cases of De
Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62
Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado
or even one of the ways by which he signed his name. After mature reflection, we are not prepared
to liken the mere sign of the cross to a thumbmark, and the reason is obvious. The cross cannot and
does not have the trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with against the petitioner. So ordered.
EN BANC
G.R. No. L-15153

August 31, 1960

In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.
Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City admitting to probate the will
of one Anacleta Abellana. The case was originally appealed to the Court of Appeals where the
following assignment of error is made:
The appellants respectfully submit that the Trial Court erred in holding that the supposed
testament, Exh. "A", was signed in accordance with law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has certified the case to
us.
The facts as found by the trial court are as follows:
It appears on record that the last Will and Testament (Exhibit "A"), which is sought to be
probated, is written in the Spanish language and consists of two (2) typewritten pages
(pages 4 and 5 of the record) double space. The first page is signed by Juan Bello and
under his name appears typewritten "Por la testadora Anacleta Abellana, residence
Certificate A-1167629, Enero 20, 1951, Ciudad de Zamboanga', and on the second page
appears the signature of three (3) instrumental witnesses Blas Sebastian, Faustino Macaso
and Rafael Ignacio, at the bottom of which appears the signature of T. de los Santos and
below his signature is his official designation as the notary public who notarized the said
testament. On the first page on the left margin of the said instrument also appear the
signatures of the instrumental witnesses. On the second page, which is the last page of said
last Will and Testament, also appears the signature of the three (3) instrumental witnesses
and on that second page on the left margin appears the signature of Juan Bello under whose
name appears handwritten the following phrase, "Por la Testadora Anacleta Abellana'. The
will is duly acknowledged before Notary Public Attorney Timoteo de los Santos. (Emphasis
supplied)

The appeal squarely presents the following issue: Does the signature of Dr. Juan A. Abello above the
typewritten statement "Por la Testadora Anacleta Abellana . . ., Ciudad de Zamboanga," comply with
the requirements of law prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator's name written by some other person in his presence, and
by his express direction, and attested and subscribed by three or more credible witness in
the presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence and by his express direction," is practically the same
as the provisions of Section 618 of the Code of Civil Procedure (Act No. 190) which reads as follows:
No will, except as provided in the preceding section shall be valid to pass any estate, real or
personal, nor charge or affect the same, unless it be in writing and signed by the testator, or
by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each other. . . . (Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign the will, or if he cannot
do so, the testator's name must be written by some other person in his presence and by his express
direction. Applying this provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,
700:
It will be noticed from the above-quoted section 618 of the Code of Civil Procedure that
where the testator does not know how, or is unable, to sign, it will not be sufficient that one of
the attesting witnesses signs the will at the testator's request, the notary certifying thereto as
provided in Article 695 of the Civil Code, which, in this respect, was modified by section 618
above referred to, but it is necessary that the testator's name be written by the person
signing in his stead in the place where he could have signed if he knew how or was able to
do so, and this in the testator's presence and by his express direction; so that a will signed in
a manner different than that prescribed by law shall not be valid and will not be allowed to be
probated.
Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner:
John Doe by the testator, Richard Doe; or in this form: "By the testator, John Doe, Richard
Doe." All this must be written by the witness signing at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal should have written at the
bottom of the will the full name of the testator and his own name in one forms given above.
He did not do so, however, and this is failure to comply with the law is a substantial defect
which affects the validity of the will and precludes its allowance, notwithstanding the fact that
no one appeared to oppose it.

The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil., 552. In the case
of Barut vs. Cabacungan, 21 Phil., 461, we held that the important thing is that it clearly appears that
the name of the testatrix was signed at her express direction; it is unimportant whether the person
who writes the name of the testatrix signs his own or not. Cases of the same import areas follows:
(Ex Parte Juan Ondevilla, 13 Phil., 479, Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90
Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not appear written under the will
by said Abellana herself, or by Dr. Juan Abello. There is, therefore, a failure to comply with the
express requirement in the law that the testator must himself sign the will, or that his name be affixed
thereto by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with, we are constrained to
declare that the said will of the deceased Anacleta Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the petition for the probate of the
will denied. With costs against petitioner.
EN BANC
G.R. No. L-3907

March 12, 1908

ROMAN ABAYA, petitioner-appellant,

vs.
DONATA ZALAMERO, respondent-appellee.
L. Joaquin for appellant.
Escueta and Lim for appellee.
TORRES, J.:
On the 6th of August, Roman Abaya filed a petition with the Court of First Instance of La Laguna, for
the allowance of the will executed by Juan Zalamero, a resident of Pagsanhan, in said province, on
the 29th of October, 1905, and produced in court the said will, which was written in Tagalog dialect.
Donata Zalamero opposed the petition, alleging that the will had been executed under pressure and
unlawful and improper influence on the part of those who were to benefit thereby, and that it had not
been executed and signed in accordance with the provisions of section 618 of the Code of Civil
Procedure. A day was appointed for the hearing and in the course of the proceedings the witnesses
offered by both parties were examined; on the 10th of January, 1907, the court refused to admit the
will of said Juan Zalamero, as requested by Roman Abaya; Abaya appealed from the decision and
moved for a new trial which motion has not been finally acted upon by the court; for this reason the
petitioner, now before this court, still insists thereon for the effects of the appeal which he had
interposed, and has submitted a certified copy of the proceedings to which the assignment of errors
presented by him refers.
Two points are presented. The first is, that Juan Zalamero, while in life, executed his will on the 29th
of October, 1905, under lawful pressure and influence exercised by those who were thereby
benefited; and second, that the said will was not executed and signed in accordance with the
provisions of section 618 of the Code of Civil Procedure.

After an examination of the facts alleged and the evidence adduced by both parties, and considering
the case according to the rules of common sense and sound criticism, it must necessarily be
admitted that the weight and preponderance of the evidence prove in a conclusive manner the
authenticity and genuineness of the said will as the real and true expression of the will of the
testator, Juan Zalamero, and for this reason the first point should have been decided by the court
below in a negative sense.
It was not expressly pretended that the said will should be disallowed under the provisions of section
634 of the Code of Civil Procedure, either because the testator was insane or otherwise mentally
incapable to execute such instrument at the time of its execution, or because it was procured by
undue and improper pressure and influence on the part of the beneficiaries; nor even if such request
had been made, could the nullity of the said will have been judicially declared in view of the lack of
satisfactory proof of the presence of such circumstances. Therefore, the court, in order to disallow
the petition, had to disregard them and rest the decision upon the allegation that the will was not
executed in accordance with the provisions of section 618 of the Code of Civil Procedure.
Notwithstanding the reasons stated in the judgment appealed from, it appears that the will in
question was executed with the requirements established by the law in force, and that, therefore, the
decision upon the second point should be against the opponents to the petition.
It is shown by the evidence, and by the will itself, that for the reasons set forth by the testator and at
his own request, one of the witnesses to the will, Mariano Zaguirre, wrote with his own hand the
name and surname of Juan Zalamero, the testator, and his presence, and that the latter put a cross
between them and a note stating that what had been written before the name and surname of the
said Juan Zalamero, with the cross placed at the foot thereof, was his testament and contained his
last will as stated by him when he directed the execution thereof in the presence of the three
witnesses who subscribed it in his presence, and in the presence of each other.
It is true that the witness Mariano Zaguirre, who was requested by the testator to write his name and
surname at the end of his will, did not affix his own signature immediately below the name and
surname of Juan Zalamero and below the cross placed by the latter with the words "by request of
the testator Juan Zalamero;" but in the said will are clearly stated the reason why it was not signed
by the testator himself as also the request he made to the witness Zaguirre, and a repetition thereof
was not necessary; further, that this same witness, upon being requested, wrote with his own hand
the name and surname of the testator, who afterwards placed the cross between them, stating that it
was his statement, all of which was written immediately after the said name and surname of the
testator and the cross made by him, and the same was subscribed by the three witnesses in the
manner provided by law.
The essential requisites prescribed by the above-mentioned section 618 of the law have been
complied with, namely, that three witnesses were present at the execution of the will of Juan
Zalamero at the date mentioned therein; that they heard his statement that the said instrument,
written and drawn up under his direction, contained his last will; that they saw and witnessed when,
at the express request of the testator, and under his direction, the witness, Mariano Zaguirre, wrote
at the foot of the will the name and surname of Juan Zalamero, and when the latter put the cross
between his written name and surname, each of the witnesses subscribing it at the time and in the
presence of each other.

For the reasons hereinbefore set forth it is our opinion that the judgment appealed from should be
reversed and that it be declared, as we now do, that the will executed by the late Juan Zalamero
while in life, under date of the 29th of October, 1905, was executed in accordance with the law, and
that therefore it should be duly admitted in order that it may produce all consequent legal effects,
and it is so ordered without any special ruling as to costs.
EN BANC
G.R. No. 1641

January 19, 1906

GERMAN JABONETA, plaintiff-appellant,

vs.
RICARDO GUSTILO, ET AL., defendants-appellees.
Ledesma, Sumulong and Quintos for appellant.
Del-Pan, Ortigas and Fisher for appellees.
CARSON, J.:
In these proceedings probate was denied the last will and testament of Macario Jaboneta,
deceased, because the lower court was of the opinion from the evidence adduced at the hearing that
Julio Javellana, one of the witnesses, did not attach his signature thereto in the presence of Isabelo
Jena, another of the witnesses, as required by the provisions of section 618 of the Code of Civil
Procedure.
The following is a copy of the evidence which appears of record on this particular point, being a part
of the testimony of the said Isabeo Jena:
Q.

1641

Who first signed the will?

A.

1641

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

Q.

1641

Who were those others to whom you have just referred?

A.
1641 After the witness Aniceto signed the will I left the house, because I was in a
hurry, and at the moment when I was leaving I saw Julio Javellana with the pen in his hand in
position ready to sign (en actitud de firmar). I believe he signed, because he was at the
table. . . .
Q.
will.

1641

State positively whether Julio Javellana did or did not sign as a witness to the

A.
1641 I can't say certainly, because as I was leaving the house I saw Julio Javellana
with the pen in his hand, in position ready to sign. I believe he signed.
Q.

1641

Why do you believe Julio Javellana signed?

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

1641

Explain this contradictory statement.

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

I believe he was signing.

The truth and accuracy of the testimony of this witness does not seem to have been questioned by
any of the parties to the proceedings, but the court, nevertheless, found the following facts:
On the 26th day of December, 1901, Macario Jaboneta executed under the following
circumstances the document in question, which has been presented for probate as his will:
Being in the house of Arcadio Jarandilla, in Jaro, in this province, he ordered that the
document in question be written, and calling Julio Javellana, Aniceto Jalbuena, and Isabelo
Jena as witnesses, executed the said document as his will. They were all together, and were
in the room where Jaboneta was, and were present when he signed the document, Isabelo
Jena signing afterwards as a witness, at his request, and in his presence and in the
presence of the other two witnesses. Aniceto Jalbuena then signed as a witness in the
presence of the testator, and in the presence of the other two persons who signed as
witnesses. At that moment Isabelo Jena, being in a hurry to leave, took his hat and left the
room. As he was leaving the house Julio Javellana took the pen in his hand and put himself
in position to sign the will as a witness, but did not sign in the presence of Isabelo Jena; but
nevertheless, after Jena had left the room the said Julio Javellana signed as a witness in the
presence of the testator and of the witness Aniceto Jalbuena.
We can not agree with so much of the above finding of facts as holds that the signature of Javellana
was not signed in the presence of Jena, in compliance with the provisions of section 618 of the Code
of Civil Procedure. The fact that Jena was still in the room when he saw Javellana moving his hand
and pen in the act of affixing his signature to the will, taken together with the testimony of the
remaining witnesses which shows that Javellana did in fact there and then sign his name to the will,
convinces us that the signature was affixed in the presence of Jena. The fact that he was in the act
of leaving, and that his back was turned while a portion of the name of the witness was being written,
is of no importance. He, with the other witnesses and the testator, had assembled for the purpose of
executing the testament, and were together in the same room for that purpose, and at the moment
when the witness Javellana signed the document he was actually and physically present and in such
position with relation to Javellana that he could see everything which took place by merely casting
his eyes in the proper direction, and without any physical obstruction to prevent his doing so,
therefore we are of opinion that the document was in fact signed before he finally left the room.

The purpose of a statutory requirement that the witness sign in the presence of the testator
is said to be that the testator may have ocular evidence of the identity of the instrument
subscribed by the witness and himself, and the generally accepted tests of presence are
vision and mental apprehension. (See Am. & Eng. Enc. of Law, vol. 30, p. 599, and cases
there cited.)
In the matter of Bedell (2 Connoly (N.Y.), 328) it was held that it is sufficient if the witnesses are
together for the purpose of witnessing the execution of the will, and in a position to actually see the
testator write, if they choose to do so; and there are many cases which lay down the rule that the
true test of vision is not whether the testator actually saw the witness sign, but whether he might
have seen him sign, considering his mental and physical condition and position at the time of the
subscription. (Spoonemore vs. Cables, 66 Mo., 579.)
The principles on which these cases rest and the tests of presence as between the testator and the
witnesses are equally applicable in determining whether the witnesses signed the instrument in the
presence of each other, as required by the statute, and applying them to the facts proven in these
proceedings we are of opinion that the statutory requisites as to the execution of the instrument were
complied with, and that the lower court erred in denying probate to the will on the ground stated in
the ruling appealed from.
We are of opinion from the evidence of record that the instrument propounded in these proceedings
was satisfactorily proven to be the last will and testament of Macario Jaboneta, deceased, and that it
should therefore be admitted to probate.
The judgment of the trial court is reversed, without especial condemnation of costs, and after twenty
days the record will be returned to the court form whence it came, where the proper orders will be
entered in conformance herewith. So ordered.
EN BANC
G.R. No. L-5971

February 27, 1911

BEATRIZ NERA, ET AL., plaintiffs-appellees,

vs.
NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
CARSON, J.:
The only question raised by the evidence in this case as to the due execution of the instrument
propounded as a will in the court below, is whether one of the subscribing witnesses was present in
the small room where it was executed at the time when the testator and the other subscribing
witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet
away, in a large room connecting with the smaller room by a doorway, across which was hung a
curtain which made it impossible for one in the outside room to see the testator and the other
subscribing witnesses in the act of attaching their signatures to the instrument.

A majority of the members of the court is of opinion that this subscribing witness was in the small
room with the testator and the other subscribing witnesses at the time when they attached their
signatures to the instrument, and this finding, of course, disposes of the appeal and necessitates the
affirmance of the decree admitting the document to probate as the last will and testament of the
deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital
importance in the determination of this case, as he was of opinion that under the doctrine laid down
in the case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing
witnesses was in the outer room when the testator and the other describing witnesses signed the
instrument in the inner room, had it been proven, would not be sufficient in itself to invalidate the
execution of the will. But we are unanimously of opinion that had this subscribing witness been
proven to have been in the outer room at the time when the testator and the other subscribing
witnesses attached their signatures to the instrument in the inner room, it would have been invalid as
a will, the attaching of those signatures under circumstances not being done "in the presence" of the
witness in the outer room. This because the line of vision from this witness to the testator and the
other subscribing witnesses would necessarily have been impeded by the curtain separating the
inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
The true test of presence of the testator and the witnesses in the execution of a will is not
whether they actually saw each other sign, but whether they might have been seen each
other sign, had they chosen to do so, considering their mental and physical condition and
position with relation to each other at the moment of inscription of each signature.
But it is especially to be noted that the position of the parties with relation to each other at the
moment of the subscription of each signature, must be such that they may see each other sign if
they choose to do so. This, of course, does not mean that the testator and the subscribing witnesses
may be held to have executed the instrument in the presence of each other if it appears that they
would not have been able to see each other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that
"at the moment when the witness Javellana signed the document he was actually and physically
present and in such position with relation to Jaboneta that he could see everything that took place by
merely casting his eyes in the proper direction and without any physical obstruction to prevent his
doing so." And the decision merely laid down the doctrine that the question whether the testator and
the subscribing witnesses to an alleged will sign the instrument in the presence of each other does
not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of
its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could
have seen each other sign. To extend the doctrine further would open the door to the possibility of all
manner of fraud, substitution, and the like, and would defeat the purpose for which this particular
condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as
the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance
against the appellant.
EN BANC

G.R. No. L-18799

March 31, 1964

HON. JOSE F. FERNANDEZ, Judge of the Court of First Instance, Negros Occidental,
ASUNCION MARAVILLA, ET AL., petitioners,
vs.
HERMINIO MARAVILLA, respondent.
Jose Gutierrez David, A. Aveto, A. Mirasol and P. C. Ramos for petitioners.
Paredes, Poblador, Cruz and Nazareno for respondent.
BARRERA, J.:
Petitioners herein appeal by certiorari from the decision of the Court of Appeals (in CA-G.R. No.
27200-R) wherein, over their objection, raising the question of jurisdiction petition, the appellate
court took cognizance of the petition for certiorari and prohibition filed by Herminio Maravilla and, in
consequence thereof, set aside the appointment of petitioner Eliezar Lopez as a special coadministrator of the estate of the deceased Digna Maravilla. The pertinent antecedent facts are as
follows:
On August 25, 1958, respondent Herminio Maravilla filed with he Court of First Instance of Negros
Occidental a petition for probate of the will (Spec. Proc. No. 4977) of his deceased wife Digna
Maravilla who died on August 12 of that same year. In the will the surviving spouse was named as
the universal heir and executor.
On September 30, 1958, Pedro, Asuncion, and Regina Maravilla (brother and sisters of the
deceased Digna Maravilla) filed an opposition to the probate of the will, on the ground, inter alia, that
the will was not signed on each page by the testatrix in the presence of the attesting witnesses and
of one another.
On March 16, 1959, on motion of respondent Herminio, which was opposed by Pedro, Asuncion,
and Regina Maravilla, the court issued an order appointing him special administrator of the estate of
the deceased, for the reason that:
... all the properties subject of the will are conjugal properties of the petitioner and his late
wife, Digna Maravilla, and before any partition of the conjugal property is done, the Court
cannot pinpoint which of the property subject of the Will belongs to Digna Maravilla,
exclusively, that shall be administered by the special administrator. Hence, although it is true
that the petitioner Herminio Maravilla has an adverse interest in the property subject of the
Will, the Court finds it impossible for the present time to appoint any person other than the
petitioner as special administrator of the property until after the partition is ordered, for the
reason that the properties mentioned in the Will are in the name of the petitioner who is the
surviving spouse of the deceased.
On February 8, 1960, the court rendered a decision denying probate of the will, as it was not duly
signed on each page by the testatrix in the presence of the attesting witnesses and of one another.
On February 17, 1960, Pedro, Asuncion, and Regina Maravilla, filed with the court a petition for
appointment of Eliezar Lopez (son of Asuncion Maravilla) as special co-administrator to protect their
interests, on the ground that the will, having been denied probate, they are the legal heirs of the

decedent. Said petition was heard on February 20, at which hearing, respondent's counsel orally
moved for postponement, because respondent's principal counsel (Salonga) had not been notified
and was not present. The court ordered presentation of oral evidence, consisting of the testimonies
of Eliezar Lopez, and Regina and Francisco Maravilla.
On February 26, 1960, respondent filed with the court his notice of appeal, appeal bond and record
on appeal, from the decision denying probate of the will. Some devisees under the will, likewise,
appealed from said decision.
On February 25, 1960, Pedro, Asuncion, and Regina Maravilla, filed with the court a petition for the
removal of respondent as special administrator, as he failed to file an inventory within 3 months from
his appointment and qualification as special administrator, as provided for in Section 1, Rule 84, of
the Rules of Court. To this petition, respondent filed an opposition, on the ground that said provision
of the Rules of Court does not apply to a special administrator, and an inventory had already been
submitted by him, before said petition for his removal was filed.
1wph1.t

On February 27, 1960, the devisees Conchita and Rose Marie Kohlhaas filed with the court a
petition for appointment of Conchita as special co-administratrix. Devisee Adelina Sajo, likewise,
filed a similar petition February 29.
On March 5, 1960, the court held a joint hearing the (1) petition to appoint Eliezar Lopez as special
administrator, (2) approval of respondent's record appeal and appeal bond, (3) petition to remove
respondent as special administrator, (4) petition to appoint Conchita Kohlhaas as special coadministratrix, and (5) petition to appoint Adelina Sajo as special co-administrator. At said hearing,
respondent objected to the appointment of Eliezar Lopez was special co-administratrix, on grounds
that (a) the law allows only one special co-administrator (b) the order of March 16, 1959 estops the
court from appointing Eliezar Lopez as special co-administrator (c) such appointment is unfair to
respondent, because owns at least 3/4 of the whole property, conjugal nature, which would be
subjected to the administrate of a stranger, and (d) a deadlock between two special administrators
would ruin the management of the property, including those of respondent. On cross-examination of
Eliezar Lopez, respondent's counsel elicited the facts that (1) Lopez was employed full time in the
PCAPE, with office in Manila. and could not discharge the functions of a co-administrator, and (2)
there was merely intention on Lopez part to resign from office.
After said joint hearing, the court appointed Eliezar Lopez as special co-administrator in an order
dictated open court, to protect the interests of Pedro, Asuncion and Regina Maravilla.
From this order, respondent, on March 7, 1960, filed with the Court of Appeals a petition
for certiorari and prohibition (with prayer for preliminary injunction) to annul the order appointing
Eliezar Lopez as special co-administrator, and to prohibit the probate court from further proceeding
with the petition for the removal of respondent as special administrator. The Court of Appeals issued
a writ of preliminary injunction on March 9, 1960 which was amended on March 11, 1960 to make it
more specific.
On October 6, 1960, petitioners Regina Maravilla, et al. filed with the Court of Appeals a petition to
certify the case to the Supreme Court, on the grounds that the principal amount in controversy in this
case exceeds P200,000.00, and the writs (of certiorari and prohibition) prayed for are not in aid of
appellate jurisdiction of the Court of Appeals, since the probate case is not on appeal before it. To
this petition, respondent filed an opposition. on the grounds that the amount in controversy is less

than P200,000.00 and the decision of the probate court (of February 8, 1960) is now on appeal
before the Court of Appeals (CA-G.R. No. 27478-R); hence, the writ prayed for is in aid of its
appellate jurisdiction, and the present case does not involve title to or possession of real estate
exceeding in value P200,000.00.1
On May 16, 1961, the Court of Appeals rendered a decision granting the writs (certiorari and
prohibition) prayed for by respondent, and declaring null and void the appointment of Eliezar Lopez
as special co-administrator.
Petitioners Regina Maravilla, et al. filed a motion for reconsideration of said decision, but it was
denied by the Court of Appeals. Hence, this appeal.
Petitioners claim that the Court of Appeals had no jurisdiction to issue the writs of certiorari and
prohibition prayed for by respondent, the same not being in aid of its appellate jurisdiction.
We agree with petitioners. The Court of Appeals, in the decision appealed from, assumed jurisdiction
over the present case on the theory that "the amount in controversy relative to the appointment of
Eliezar Lopez as special co-administrator to protect the interests of respondents (herein petitioners)
is only P90,000.00 more or less, i.e., one fourth of the conjugal property" (of respondent and the
deceased Digna Maravilla) which, is per inventory submitted by respondent as special administrator
is valued at P362,424.90. This theory is untenable. Note that the proceedings had on the
appointment of Eliezar Lopez as special co-administrator are merely incidental to the probate or
testate proceedings of the deceased Digna Maravilla presently on appeal before the Court of
Appeals (CA-G.R. No. 27478-R) where petitioners' motion to elevate the same to the Supreme
Court, on the ground that the amount herein involved is within the latter's exclusive jurisdiction, is still
pending, resolution. That the Court of Appeals has no appellate jurisdiction over said testate
proceedings cannot be doubted, considering that the properties therein involved are valued at
P362,424,90, as per inventory of the special administrator.
Under Section 2, Rule 75, of the Rules of Court, the property to be administered and liquidated in
testate or intestate proceedings of the deceased spouse is, not only that part of the conjugal estate
pertaining to the deceased spouse, but the entire conjugal estate. This Court has already held that
even if the deceased had left no debts, upon the dissolution of the marriage by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated in the
testate or intestate proceedings of the deceased spouse (Vda. de Roxas v. Pecson, et al., L-2211,
December 20, 1948; 82 Phil. 407; see also Vda. de Chantengco v. Chantengco, et al., L-10663,
October 31, 1958). In a number of cases where appeal was taken from an order of a probate court
disallowing a will, this Court, in effect, recognized that the amount or value involved or in controversy
therein is that of the entire estate (Suntay v. Suntay, L-3087, July 31, 1954, 50 O.G. 5321; Vano v.
Vda. de Garces, et al., L-6303, June 30, 1954, 50 O.G. 3045). Not having appellate jurisdiction over
the proceedings in probate (CA-G.R. No. 27478-R), considering that the amount involved therein is
more than P200,000.00, the Court of Appeals cannot also have original jurisdiction to grant the writs
of certiorari and prohibition prayed for by respondent in the instant case, which are merely incidental
thereto.
In the United States, the rule is that "proceedings in probate are appealable where the amount or
value involved is reducible to a pecuniary standard, the amount involved being either the appellant's
interest or the value of the entire estate according as the issues on appeal involve only the
appellant's rights or the entire administration of the estate. ... In a contest for administration of an

estate the amount or value of the assets of the estate is the amount in controversy for purposes of
appeal." (4 C.J.S. 204). In line with this ruling, it is to be observed that respondent's interest as
appellant in the probate proceedings (CA-G.R. No. 27478-R) is, according to his theory, the whole
estate amounting to P362,424.90, or, at least more than 3/4 thereof, or approximately P270,000.00.
Such interest, reduced to a pecuniary standard on the basis of the inventory, is the amount or value
of the matter in controversy, and such amount being more than P200,000.00, it follows that the
appeal taken in said proceedings falls within the exclusive jurisdiction of the Supreme Court and
should, therefore, be certified to it pursuant to Section 17 of the Judiciary Act of 1948, as amended.
Note also that the present proceedings under review were for the annulment of the appointment of
Eliezar Lopez as special co-administrator and to restrain the probate court from removing
respondent as special administrator. It is therefore, a contest for the administration of the estate and,
consequently, the amount or value of the assets of the whole estate is the value in controversy (4
C.J.S. 204). It appearing that the value of the estate in dispute is much more than P200,000.00, the
Court of Appeals clearly had no original jurisdiction to issue the writs in question.
The Court of Appeals, in the decision appealed from, arrived at the amount of "P90,000.00 more or
less", as the amount involved in the case, upon authority of the case of Vistan v. Archbishop (73 Phil.
20). But this case is inapplicable, as it does not refer to the question of administration of the estate,
nor to an order denying probate of a will, but only to the recovery of a particular legacy consisting of
the rentals of a fishpond belonging to the estate. In an analogous case involving the administration
of a trust fund, the United States Supreme Court held:
Where the trust fund administered and ordered to be distributed by the circuit court, in a suit
to compel the stockholders of a corporation to pay their subscriptions to stock to realize the
fund, amounts to more than $5,000.00, this court has jurisdiction of the appeal, which is not
affected by the fact that the amounts decreed to some of the creditors are less than that sum
(Handly et al. vs. Stutz, et al., 34 Law Ed. 706).
Respondent also contends that appeals in special proceedings, as distinguished from ordinary civil
cases, are within the exclusive appellate jurisdiction of the Court of Appeals, since they are not
enumerated in Section 17 of the Judiciary Act, as amended. Granting, arguendo, that a special
proceeding is not a civil action, it has never been decided that a special proceeding is not a "civil
case" (Carpenter v. Jones, 121 Cal. 362; 58 p. 842). On the other hand, it has been held that the
term "civil case" includes special proceedings (Herkimer v. Keeler, 100 Iowa 680, N.W. 178).
Moreover, Section 2, Rule 73, of the Rules of Court provides that the rules on ordinary civil actions
are applicable in special proceedings where they are not inconsistent with, or when they may serve
to supplement the provisions relating to special proceedings. Consequently, the procedure of appeal
is the same in civil actions as in special proceedings. (See Moran's Comments on the Rules of
Court, Vol. II, 1957 Ed., p. 326.)
The cases cited by respondent where this Court ruled that the separate total claim of the parties and
not the combined claims against each other determine the appellate jurisdictional amount, are not
applicable to, the instant case, because Section 2, Rule 75 of the Rules of Court is explicit that the
amount or value involved or in controversy in probate proceedings is that of the entire estate.
Assuming, arguendo, that the rule in the cases cited by respondent is here applicable, it should be
noted that respondent claims the whole estate of at least more than 3/4 thereof. Said claim, reduced
to a pecuniary standard, on the basis of the inventory, would amount to more than P200,000.00 and,
consequently, within the exclusive jurisdiction of the Supreme Court.

The case of Ledesma v. Natividad (L-6115, May 10, 1954) cited by respondent in his brief, is also
inapplicable, because unlike the instant case, it did not involve a contest in the administration of the
estate.
While it is true that questions of fact have been raised in the probate proceedings (Spec. Proc. No.
4977, CFI of Negros Occidental) which was appealed by respondent to the Court of Appeals, it
becomes immaterial, in view of Sections 17 and 31 of the Judiciary Act of 1948, as amended,
providing that the Supreme Court shall have exclusive appellate jurisdiction over "all cases in which
the value in controversy exceeds two hundred thousand pesos, exclusive of interests and costs",
and that "all cases which may be erroneously brought to the Supreme Court, or to the Court of
Appeals shall be sent to the proper court, which shall hear the same as if it had originally been
brought before it".
On the question of the appointment of petitioner Eliezar Lopez as special administrator, we agree
with respondent that there was no need for it. Note that the Rules of Court contain no provision on
special co-administrator, the reason being, that the appointment of such special administrator is
merely temporary and subsists only until a regular executor or administrator is duly appointed. Thus,
it would not only be unnecessary but also impractical, if for the temporary duration of the need for a
special administrator, another one is appointed aside from the husband, in this case, upon whom the
duty to liquidate the community property devolves merely to protect the interests of petitioners who,
in the event that the disputed will is allowed to probate, would even have no right to participate in the
proceedings at all. (Roxas v. Pecson, 82 Phil. 407.)
In view of the conclusion herein reached, in connection with the amount involved in the controversy,
it is suggested that appropriate steps be taken on the appeal pending in the Court of Appeals
involving the probate of the will (CA-G.R. No. 27478-R) to comply with the provisions of the Judiciary
Act on the matter.
WHEREFORE, the decision of the Court of Appeals of May 16, 1961 is set aside and another one
entered also setting aside the order of the trial court of March 5, 1960, appointing Eliezar Lopez as
special co-administrator. Without costs. So ordered.
EN BANC
G.R. No. L-26545 December 16, 1927
Testate Estate of Florencia R. Mateo. PERFECTO GABRIEL, petitioner-appellee,
vs.
RITA R. MATEO, ET AL., opponents-appellants.
R. Gonzales Lloret, Carlos S. Basa, Thomas Cary Welch and Camus, Delgado and Recto for
appellants.
The appellee in his own behalf.

AVANCEA, C. J.:

The judgment appealed from allowed the will of Florencia Mateo dated February 6, 1923, composed
of two used sheets to probate. The will appears to be signed by the testatrix and three witnesses on
the left margin of each of the sheets, by the testatrix alone at the bottom, and by the three witnesses
after the attestation clause. The testatrix died on August 13, 1925. Opposition to such probate was
filed by Rita Mateo, the testatrix's sister, and by other relatives.
The three attesting witnesses to this will, testifying in this case, declared that the signature of the
testatrix were written in their presence and that they signed their names in the presence of the
testatrix and of each other.
The testatrix from girlhood knew how to sign her name and did so with her right hand; but as the
right side of her body later became paralyzed, she learned to sign with her left hand and for many
years thereafter, up to the time of her death, she used to sign with that hand. Opponents allege that
Florencia Mateo did not sign this will.
There are three salient arguments among those adduced by the opponents in support of their
opposition.
The attesting witnesses testified that the testratrix signed before they did. The signatures of the
testatrix on the left margin of the two sheets of the will are between the signatures of the two
witnesses Vidal Raoa and Julio Gabriel, and below her surname is the signature of the other
witness Felicisimo Gabriel. The signatures of Vidal Raoa and Julio Gabriel are on a level with each
other, while that of Felicisimo Gabriel is found a little lower down. The testatrix's signatures start on
the line with Felicisimo Gabriel's signature, but tend to rise and her surname reaches a level with
Julio Gabriel's signature.
It is said that this direction of the testatrix's signature was due to the fact that when it was written
Felicisimo Gabriel's signature was already there, and so she had to write her surname upwards in
order to avoid interfering with that Felicisimo Gabriel, which would have been the case had she
continued on the horizontal line on which she had written her first name. From this detail it is
pretended to draw the inference that the attesting witnesses signed before testatrix, contrary to their
testimony that she singed before they did. This deduction, however, is unnecessary. It may be
inferred with equal, if not greater, logic that the testatrix signed before him, and when it came to the
witness Gabriel's turn, he, finding the space below the testatrix signature free, signed his name
there. On the other hand, it may be noted that the testatrix's other signature at the bottom of the will
also shows a more or less marked tendency to rise, notwithstanding the fact that there was no
signature with which she might interfere if she continued to write in a straight horizontal line.
Furthermore, if, as the opposition alleges, the testatrix's signature is not genuine and was placed
there by another person, it is strange that the latter should have done so in such a way as to write it
above Gabriel's signature while following the horizontal line, when this could have been avoided by
simply putting it a little higher. And this may be attributed to carelessness in the first case, but it
cannot be so explained in the second.
Attention is also called to the apparently different kinds of ink used by the testatrix in her signature
and by the attesting witnesses. Really an examination of these signature reveals a somewhat
deeper intensity of ink in the signature of the testatrix than in those of the attesting witnesses. It is
alleged that this circumstance cannot be reconciled with the declaration of the attesting witnesses
that they used the same pen and ink as the testatrix. But, only one of these witnesses declared this.
The other one was not sure of it and said that he said that he did not perfectly remember this detail.

The third scarcely made reference to this particular. At all events, this apparent difference in ink may
be merely
due supposing that the same ink and pen were used to the difference in pressure employed in
writing these signatures, as is reasonable to suppose when we consider that the testatrix was a
paralytic and wrote with her left hand; or it may have been due to the fact that the attesting
witnesses dipped lightly in the ink while the testatrix dipped the pen so as to take up the ink from the
bottom of the well. To bring out this irregularity, the opposition presented the expert Del Rosario who
asserted, among other things, that the signature of the testatrix is more recent than that of the
attesting witnesses. If this opinion is correct and if, as alleged, the testatrix's signature is forged, it
would mean that the forgers, after having prepared the will and made the witnesses sign, allowed
sometime to elapsed before forging the testatrix's signature, which supposition is not all probable,
nor has it been explained.
lawphi1.net

At all events, even admitting that there is a certain question as to whether the attesting witnesses
signed before or after the testatrix, or whether or not they signed with the same pen and ink, these
are details of such trivial importance, considering that this will was signed two years before the date
on which these witnesses gave their testimony, that it is not proper to set aside the will for this
reason alone.
The attesting witnesses to this will, who testified also as witnesses at the trial of this case, showed
themselves to be intelligent and honest, one of them being a lawyer of twelve year's practice, and
there is no reason to reject their testimony, and to suppose that they were untruthful in testifying, and
that they falsified the will in question.
Lastly, attention is called to the unreasonableness of the testatrix in not leaving anything to the
principal opponent, her sister Rita Mateo, and to her nephews and nieces, to whom she had been so
affectionate during life. But as to the affectionate relations between the deceased and the
opponents, only the opponent Rita Mateo testified, and she only stated that she was on good terms
with her sister during the latter's lifetime; that the said sister used to give her a sack or some gantas
of rice, and, a times, a little money; that she held all her nephews and nieces in equal regard. But
even supposing that this were so, there is nothing strange in the testatrix having left nothing to the
opponents, or in her having left all of her estate to the only heir instituted in her will, Tomas Mateo,
who is also one of her nieces. And not only is it not strange, but it seems reasonable, since,
according to the evidence of the testatrix when the former was but 3 years old, and from then on up
to the time of her death had never been separated from her.
The opposition presented Doctor Banks as expert. He testified that the signatures of the testatrix in
the will are not genuine. The petitioner, on the other hand, presented another expert, Pedro Serrano
Laktao, who affirmed that these signatures are genuine. But, over the testimony of these experts, we
have the categorical and positive declaration of veracious witnesses who affirm that these signatures
were written by the testatrix herself.
The judgment appealed from is affirmed, with costs against the appellants. So ordered.
FIRST DIVISION
G.R. No. L-37453 May 25, 1979

RIZALINA GABRIEL GONZALES, petitioner,

vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.

GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on
May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal
dated December 15, 1964 and allowed the probate of the last will and testament of the deceased Isabel
Gabriel. *
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with
the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a
will alleged to have been executed by the deceased Isabel Gabriel and designating therein petitioner
as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without
issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the
age of eighty-five (85), having been born in 1876. It is likewise not controverted that herein private
respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased,
and that private respondent, with her husband and children, lived with the deceased at the latters
residence prior an- d up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been
executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of
Isabel Gabriel. It consists of five (5) pages, including the pages whereon the attestation clause and
the acknowledgment of the notary public were written. The signatures of the deceased Isabel
Gabriel appear at the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay
nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay
pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang
kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na
siya niyang TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay
nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa
ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng
patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left
hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at
kami namang mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng

lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig
ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia,
Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are
their respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St.,
Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The WW is paged by typewritten words as follows: "Unang Dahon" and underneath "(Page
One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas,
Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her
estate; that all her obligations, if any, be paid; that legacies in specified amounts be given to her
sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and
nieces, Benjamin, Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangeline, Rudyardo Rosa, Andrea, Marcial, Numancia, Verena an surnamed Santiago. To
herein private respondent Lutgarda Santiago, who was described in the will by the testatrix as "aking
mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak"
and named as universal heir and executor, were bequeathed all properties and estate, real or
personal already acquired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document
purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative
4. That the purported WW was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for her
benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the court a
quo rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. That there is no iota of evidence to support the contentio that the purported will of
the deceased was procured through undue and improper pressure and influence on
the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;

3. That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
4. That the evidence is likewise conclusive that the document presented for probate,
Exhibit 'F' is not the purported win allegedly dictated by the deceased, executed and
signed by her, and attested by her three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last wig and
testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the
only issue decided on appeal was whether or not the will in question was executed and attested as
required by law. The Court of Appeals, upon consideration of the evidence adduced by both parties,
rendered the decision now under review, holding that the will in question was signed and executed
by the deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting witnesses,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the
presence of the deceased and of each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such
motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:
The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last wig and testament of Isabel Gabriel was not executed in accordance
with law because the same was signed on several occasions, that the testatrix did
not sign the will in the presence of all the instrumental witnesses did not sign the will
in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and
documentary evidence of record, There is no reason to alter the findings of fact in the
decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court
abused its discretion and/or acted without or in excess of its jurisdiction in reverssing the findings of
fact and conclusions of the trial court. The Court, after deliberating on the petition but without giving
due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment
thereon, which comment was filed on Nov. 14, 1973. Upon consideration of the allegations, the
issues raised and the arguments adduced in the petition, as well as the Comment 8 of private
respondent thereon, We denied the petition by Resolution on November 26, 1973, 9 the question raised
being factual and for insufficient showing that the findings of fact by respondent Court were unsupported
by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on
January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to
give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and
attested as required by law when there was absolutely no proof that the three instrumental witnesses
were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and
execution of the win Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into the
document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the
typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three
attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel
Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia was not
physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961 by the deceased
Isabel Gabriel and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture
takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been
explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the
accepted and usual course of judicial proceedings, as to call for an exercise of the power of
supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate
Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in
character and content. Hence, at the very outset, We must again state the oft-repeated and wellestablished rule that in this jurisdiction, the factual findings of the Court of Appeals are not
reviewable, the same being binding and conclusive on this Court. This rule has been stated and
reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA
737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent
cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) and Vda. de Catindig vs.
Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA,
this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it
has been well-settled that the jurisdiction of tills Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel, it was held that the same principle is applicable, even if the Court of Appeals
was in disagreement with the lower court as to the weight of the evidence with a consequent
reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence
are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot
be disturbed by Us particularly because its premises are borne out by the record or based upon
substantial evidence and what is more, when such findings are correct. Assignments of errors
involving factual issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify
the facts as set forth in the decision of the Court of Appeals sought to be reversed. Where the
findings of the Court of Appeals are contrary to those of the trial court, a minute scrutiny by the
Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding
that the document, Exhibit "F", was executed and attested as required by law when there was
absolutely no proof that the three instrumental witnesses were credible witnesses. She argues that
the require. ment in Article 806, Civil Code, that the witnesses must be credible is an absolute
requirement which must be complied with before an alleged last will and testament may be admitted
to probate and that to be a credible witness, there must be evidence on record that the witness has a
good standing in his community, or that he is honest and upright, or reputed to be trustworthy and
reliable. According to petitioner, unless the qualifications of the witness are first established, his
testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is further urged that the
term "credible" as used in the Civil Code should receive the same settled and well- known meaning it
has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions
on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the
qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification
from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and
not blind, deaf or dumb, and able to read and write, may be a witness to the
execution of a will mentioned in article 806 of this Code. "Art. 821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,

(2) Those who have been convicted of falsification of a document, perjury or false
testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time
during the trial as to his good standing in the community, his reputation for trustworthythiness and
reliableness, his honesty and uprightness in order that his testimony may be believed and accepted
by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced from his answers
to the questions propounded to him, that his age (18 years or more) is shown from his appearance,
testimony , or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb
and that he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for
trustworthiness and reliableness, his honesty and uprightness, because such attributes are
presumed of the witness unless the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil
Code should be given the same meaning it has under the Naturalization Law where the law is
mandatory that the petition for naturalization must be supported by two character witnesses who
must prove their good standing in the community, reputation for trustworthiness and reliableness,
their honesty and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the petitioner to be a
resident of the Philippines for the period of time required by the Act and a person of good repute and
morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely
attest the execution of a will or testament and affirm the formalities attendant to said execution. And
We agree with the respondent that the rulings laid down in the cases cited by petitioner concerning
character witnesses in naturalization proceedings are not applicable to instrumental witnesses to
wills executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely,
Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily
supported by the evidence as found by the respondent Court of Appeals, which findings of fact this
Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any
disqualification of any of the said witnesses, much less has it been shown that anyone of them is
below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must
be subscribed at the end thereof by the testator himself or by the testator's name written by some
other person in his presence, and by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one another, While the petitioner
submits that Article 820 and 821 of the New Civil Code speak of the competency of a witness due to
his qualifications under the first Article and none of the disqualifications under the second Article,
whereas Article 805 requires the attestation of three or more credible witnesses, petitioner concludes
that the term credible requires something more than just being competent and, therefore, a witness

in addition to being competent under Articles 820 and 821 must also be a credible witness under
Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are credible
in themselves, that is, that they are of good standing in the community since one was a family driver
by profession and the second the wife of the driver, a housekeeper. It is true that Celso Gimpaya
was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde
Orobia was a piano teacher to a grandchild of the testatrix But the relation of employer and
employee much less the humble or financial position of a person do not disqualify him to be a
competent testamentary witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344;
Testate Estate of Raymundo, Off. Gaz., March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this
being obvious from that portion of Article 820 which says "may be Q witness to the execution of a will
mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as
witnesses to a will are concerned simply means " competent." Thus, in the case of Suntay vs.
Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it
was in existence at the time of, and not revoked before, the death of the testator, still the provisions
of the lost wig must be clearly and distinctly proved by at least two credible witnesses. 'Credible
witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay.
" emphasissupplied).
In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that
"Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of
the age of eighteen years or more, and not blind, deaf, or dumb and able to read and write, may be a
witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950,
under Art. 820. The relation of employer and employee, or being a relative to the beneficiary in a win,
does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation
of wills, if other qualifications as to age, mental capacity and literacy are present, is that said witness
must be credible, that is to say, his testimony may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity, crime, or
other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619, 226 Pix 16, 134
Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a 'competent
witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (lbid, p.
341).
Expression 'credible witness' in relation to attestation of wins means 'competent
witness that is, one competent under the law to testify to fact of execution of will.
Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of Uvalde, Tex . Civ. App.
60 S.W. 2nd 888, 889. (Ibid, p. 342)

The term 'credible', used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the
will, are legally competent to testify, in a court of justice, to the facts attested by
subscribing the will, the competency being determined as of the date of the execution
of the will and not of the timr it is offered for probate,Smith vs. Goodell 101 N.E. 255,
256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses that is, such persons as are not legally disqualified from testifying in
courts of justice, by reason of mental incapacity, interest, or the commission of
crimes, or other cause excluding them from testifying generally, or rendering them
incompetent in respect of the particular subject matter or in the particular suit. Hill vs.
Chicago Title & Trust co 152 N.E. 545, 546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined
by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends On the
appreciation of his testimony and arises from the belief and conclusion of the Court that said witness
is telling the truth. Thus, in the case ofVda. de Aroyo v. El Beaterio del Santissimo Rosario de
Molo, No. L-22005, May 3, 1968, the Supreme Court held and ruled that: "Competency as a witness
is one thing, and it is another to be a credible witness, so credible that the Court must accept what
he says. Trial courts may allow a person to testify as a witness upon a given matter because he is
competent, but may thereafter decide whether to believe or not to believe his testimony." In fine, We
state the rule that the instrumental witnesses in Order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821
and for their testimony to be credible, that is worthy of belief and entitled to credence, it is not
mandatory that evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and reliable, for a
person is presumed to be such unless the contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their testimonies must be credible before the court
allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was
fatal for respondent not to have introduced prior and independent proof of the fact that the witnesses
were "credible witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner
disputes the findings of fact of the respondent court in finding that the preparation and execution of
the will was expected and not coincidental, in finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit "F", in holding that the fact that the three typewritten lines under the typewritten
words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion, in holding credible that Isabel Gabriel could have
dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was
physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and
the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed, and in holding that
the grave contradictions, evasions and misrepresentations of the witnesses (subscribing and notary)
presented by the petitioner had been explained away.

Since the above errors are factual We must repeat what We have previously laid down that the
findings of fact of the appellate court are binding and controlling which We cannot review, subject to
certain exceptions which We win consider and discuss hereinafter. We are convinced that the
appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the
alleged unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso and bringing
all the witnesses without previous appointment for the preparation and execution of the win and that
it was coincidental that Atty. Paraiso was available at the moment impugns the finding of the Court of
Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he
explained that he was available for any business transaction on that day and that Isabel Gabriel had
earlier requested him to help her prepare her will. The finding of the appellate court is amply based
on the testimony of Celso Gimpaya that he was not only informed on the morning of the day that he
witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to
witness the making of her will, as well as the testimony of Maria Gimpaya that she was called by her
husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said
house, they left in a car to the lawyer's office, which testimonies are recited in the respondent Court's
decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria
Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso
Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while
Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14,
1961. The respondent Court correctly observed that there was nothing surprising in these facts and
that the securing of these residence certificates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence, reveals that the
spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso
was planned by the deceased, which conclusion was correctly drawn from the testimony of the
Gimpaya spouses that they started from the Navotas residence of the deceased with a photographer
and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife,
Quezon City to fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco
before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that. the
will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of
her will and that he told her that if she really wanted to execute her will, she should bring with her at
least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he believed her to be of
sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is,
therefore, clear that the presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso
Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not
coincidental as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the document Exhibit '
L which the petitioner assails as contradictory and irreconcilable with the statement of the Court that
Atty. Paraiso was handed a list (containing the names of the witnesses and their respective

residence certificates) immediately upon their arrival in the law office by Isabel Gabriel and this was
corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received
such list from Isabel Gabriel, We cannot agree with petitioner's contention. We find no contradiction
for the, respondent Court held that on the occasion of the will making on April 15, 1961, the list was
given immediately to Atty. Paraiso and that no such list was given the lawyer in any previous
occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the
witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary Public
Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the
attestation clause duly executed and signed on the same occasion, April 15, 1961. And since Exhibit
"F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the
same is a public document executed and attested through the intervention of the notary public and
as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find
no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten
lines under the typewritten words "pangalan ' and "tinitirahan" were left blank shows beyond cavil
that the three attesting witnesses were all present in the same occasion merits Our approval
because tills conclusion is supported and borne out by the evidence found by the appellate court,
thus: "On page 5 of Exhibit "F", beneath the typewritten words "names", "Res. Tax Cert. date issued"
and place issued the only name of Isabel Gabriel with Residence Tax certificate No. A-5113274
issued on February 24, 1961 at Navotas Rizal appears to be in typewritten form while the names,
residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the
three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides with Atty.
Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of
the appellant Santiago as executrix of the will without bond. The technical description of the
properties in paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were
only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the
docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were
supplied by him, whereupon petitioner contends that it was incredible that Isabel Gabriel could have
dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been suffering from a
brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after
the execution of Exhibit "F". While we can rule that this is a finding of fact which is within the
competency of the respondent appellate court in determining the testamentary capacity of the
testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or
memorandum appears to be fully supported by the following facts or evidence appearing on record.
Thus, Isabel Gabriel, despite her age, was particularly active in her business affairs as she actively
managed the affairs of the movie business ISABELITA Theater, paying the aparatistas herself until
June 4, 1961, 3 days before her death. She was the widow of the late Eligio Naval, former Governor
of Rizal Province and acted as coadministratrix in the Intestate Estate of her deceased husband
Eligio Naval. The text of the win was in Tagalog, a dialect known and understood by her and in the

light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will
without any note or memorandum, a fact unanimously testified to by the three attesting witnesses
and the notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial and
documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the testatrix and the other two witnesses,
Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus:
"On the contrary, the record is replete with proof that Matilde Orobia was physically present when the
will was signed by Isabel Gabriel on April '15, 1961 along with her co-witnesses Celso Gimpaya and
Maria Gimpaya. The trial court's conclusion that Orobia's admission that she gave piano lessons to
the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a
Saturday for which reason Orobia could not have been present to witness the will on that day is
purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a
Saturday, she gave no piano lessons on that day for which reason she could have witnessed the
execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to
make up for the same. Anyway, her presence at the law office of Atty. Paraiso was in the morning of
April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of
the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was
present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand
margin of each of the pages of the will, the documentary evidence which is the will itself, the
attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such
fact that Matilde Orobia was present on that day of April 15, 1961 and that she witnessed the will by
signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P.
Paraiso. The attestation clause which Matilde Orobia signed is the best evidence as to the date of
signing because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be
proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial
court gave undue importance to the picture-takings as proof that the win was improperly executed,
We agree with the reasoning of the respondent court that: "Matilde Orobia's Identification of the
photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is at worst a minor
mistake attributable to lapse of time. The law does not require a photographer for the execution and
attestation of the will. The fact that Miss Orobia mistakenly Identified the photographer as Cesar
Mendoza scarcely detracts from her testimony that she was present when the will was signed
because what matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly
held: "The trial court gave undue importance to the picture takings, jumping therefrom to the
conclusion that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso
Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and positive when they spoke

of this occasion. Hence, their Identification of some photographs wherein they all appeared along
with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at
the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment
of the first incident upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia
was admittedly no longer present was wholly unnecessary if not pointless. What was important was
that the will was duly executed and witnessed on the first occasion on April 15, 1961 , " and We
agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not
require picture-taking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in
their respective testimonies before the trial court. On the other hand, the respondent Court of
Appeals held that said contradictions, evasions and misrepresentations had been explained away.
Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described
as "elite" which to him meant big letters which are of the type in which the will was typewritten but
which was Identified by witness Jolly Bugarin of the N.B.I. as pica the mistake in mentioning the
name of the photographer by Matilde Orobia to be Cesar Mendoza when actually it was Benjamin
Cifra, Jr. these are indeed unimportant details which could have been affected by the lapse of time
and the treachery of human memory such that by themselves would not alter the probative value of
their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it
cannot be expected that the testimony of every person win be Identical and coinciding with each
other with regard to details of an incident and that witnesses are not expected to remember all
details. Human experience teach us "that contradictions of witnesses generally occur in the details of
certain incidents, after a long series of questionings, and far from being an evidence of falsehood
constitute a demonstration of good faith. In as much as not all those who witness an incident are
impressed in like manner, it is but natural that in relating their impressions, they should not agree in
the minor details; hence the contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by
the respondent appellate court because the trial court was in a better position to weigh and evaluate
the evidence presented in the course of the trial. As a general rule, petitioner is correct but it is
subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse
the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the
significance of which have been misinterpreted by the trial court, cannot be disputed. Findings of
facts made by trial courts particularly when they are based on conflicting evidence whose evaluation
hinges on questions of credibility of contending witnesses hes peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts
and circumstances established in the record. Whereas the appellate court said that "Nothing in the
record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso;" that the trial court's conclusion that Matilde Orobia could not have
witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and
Maria Gimpaya sign the same or that she witnessed only the deceased signing it, is a conclusion
based not on facts but on inferences; that the trial court gave undue importance to the picturetakings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will signing occasion
was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to

witness the signing of her will, then it becomes the duty of the appellate court to reverse findings of
fact of the trial court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the
Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again
We agree with the petitioner that among the exceptions are: (1) when the conclusion is a finding
grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the
presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the
testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife Maria Gimpaya,
and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I.
Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical
certificate from one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to
dictate what she wanted to be written in the will and the attorney wrote down the dictation of Isabel
Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what
he wrote as dictated and she affirmed their correctness; the lawyer then typed the will and after
finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses Matilde Orobia,
Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the
document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested
the will by signing her name at the end of the attestation clause and at the left-hand margin of pages
1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso
Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the
attestation clause and at the left-hand margin of the other pages of the document in the presence of
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her
name at the foot of the attestation clause and at the left-hand margin of every page in the presence
of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the
execution and attestation of the will, a photographer took pictures, one Exhibit "G", depicting Matilde
Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing
testimony that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a
Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the Identities of the
three attesting witnesses until the latter showed up at his law office with Isabel Gabriel on April 15,
1961. Atty. Paraiso's claim which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit "F" dissipates any lingering doubt that he prepared and ratified the
will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel
could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the
contention of petitioner that it was incredible. This ruling of the respondent court is fully supported by
the evidence on record as stated in the decision under review, thus: "Nothing in the record supports
the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty.
Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel
dictated her will to Atty. Paraiso and that other than the piece of paper that she handed to said
lawyer she had no note or document. This fact jibes with the evidence which the trial court itself
believed was unshaken that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first
was Isabel Gabriel's wish to be interred according to Catholic rites the second was a general
directive to pay her debts if any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda.
de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13
nephews and nieces including oppositor-appellee Rizalina Gabriel and the amount for each legatee
the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir
mentioning in general terms seven (7) types of properties; the sixth disposed of the remainder of her
estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such
properties to anyone except in extreme situations in which judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi
Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570;
Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the
exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate
court are fully supported by the evidence on record. The conclusions are fully sustained by
substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts.
The respondent Court's findings of fact are not conflicting. Hence, the well-established rule that the
decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be
disturbed by this Tribunal and it must be applied in the case at bar in its full force and effect, without
qualification or reservation. The above holding simply synthesize the resolutions we have heretofore
made in respect ' to petitioner's previous assignments of error and to which We have disagreed and,
therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the
respondent Court acted properly and correctly and has not departed from the accepted and usual
course of judicial proceedings as to call for the exercise of the power of supervision by the Supreme
Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court
and admitting to probate Exhibit "F", the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the
evidence on record is unassailable that: "From the welter of evidence presented, we are convinced
that the will in question was executed on April 15, 1961 in the presence of Matilde Orobia, Celso
Gimpaya and Maria Gimpaya signing and witnessing the same in the the will on a table with Isabel
Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing the
notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and
notarial register. A few days following the signing of the will, Isabel Gabriel, Celso Gimpaya and
another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for
the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case
at bar, the three instrumental witnesses who constitute the best evidence of the will making have
testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law
and long in the practice thereof, who thereafter notarized it. All of them are disinterested witnesses

who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and
we go back to the rule that the Supreme Court cannot review and revise the findings of facts of the
respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED,
with costs against the petitioner.
SO ORDERED.
EN BANC
G.R. No. L-21755

December 29, 1924

In the matter of the testate estate of Antonio Mojal, deceased. FILOMENA NAYVE, petitionerappellee,
vs.
LEONA MOJAL and LUCIANA AGUILAR, opponents-appellants.
Manuel M. Calleja for appellants.
Felix U. Calleja for appellee.

ROMUALDEZ, J.:
This is a proceeding for the probate of the will of the deceased Antonio Mojal instituted by his
surviving spouse, Filomena Nayve. The probate is opposed by Leona Mojal and Luciana Aguilar,
sister and niece, respectively, of the deceased.
The Court of First Instance of Albay, which tried the case, overruled the objections to the will, and
ordered the probate thereof, holding that the document in controversy was the last will and
testament of Antonio Mojal, executed in accordance with law. From this judgment the opponents
appeal, assigning error to the decree of the court allowing the will to probate and overruling their
opposition.
The will in question, Exhibit A, is composed of four sheets with written matter on only side of each,
that is, four pages written on four sheets. The four sides or pages containing written matter are
paged "Pag. 1," "Pag. 2," "Pag. 3," "Pag. 4," successively. Each of the first two sides or pages, which
was issued, was signed by the testator and the three witnesses on the margin, left side of the reader.
On the third page actually used, the signatures of the three witnesses appear also on the margin, left
side of the reader, but the signature of the testator is not on the margin, but about the middle of the
page, at the end of the will and before the attestation clause. On the fourth page, the signatures of
the witnesses do not appear on the margin, but at the bottom of the attestation clause, it being the
signature of the testator that is on the margin, left side of the reader.
The defects attributed to the will are:

(a) The fact of not having been signed by the testator and the witnesses on each and every sheet on
the left margin; (b) the fact of the sheets of the document not being paged with letters; (c) the fact
that the attestation clause does not state the number of sheets or pages actually used of the will;
and (d) the fact that the testator does not appear to have signed all the sheets in the presence of the
three witnesses, and the latter to have attested and signed all the sheets in the presence of the
testator and of each other.
As to the signatures on the margin, it is true, as above stated, that the third page actually used was
signed by the testator, not on the left margin, as it was by the witnesses, but about the middle of the
page and the end of the will; and that the fourth page was signed by the witnesses, not on the left
margin, as it was by the testator, but about the middle of the page and at the end of the attestation
clause.
In this respect the holding of this court in the case of Avera vs. Garcia and Rodriguez (42 Phil., 145),
is applicable, wherein the will in question was signed by the testator and the witnesses, not on the
left, but right, margin. The rule laid down in that case is that the document contained the necessary
signatures on each page, whereby each page of the will was authenticated and safeguarded against
any possible alteration. In that case, the validity of the will was sustained, and consequently it was
allowed to probate.
Applying that doctrine to the instant case, we hold that, as each and every page used of the will
bears the signatures of the testator and the witnesses, the fact that said signatures do not all appear
on the left margin of each page does not detract from the validity of the will.
lawphi1.net

Turning to the second defect alleged, that is to say, the fact that the sheets of the document are not
paged with letters, suffice it to cite the case of Unson vs. Abella (43 Phil., 494), where this court held
that paging with Arabic numerals and not with letters, as in the case before us, is within the spirit of
the law and is just as valid as paging with letters.
As to the proposition that the attestation clause does not state the number of sheets or pages of the
will, which is the third defect assigned, it must be noted that the last paragraph of the will here in
question and the attestation clause, coming next to it, are of the following tenor:

In witness whereof, I set my hand unto this will here in the town of
Camalig, Albay, Philippine Islands, this 26th day of November, nineteen
hundred and eighteen, composed of four sheets, including the next:

ANTONIO MOJAL

(Signed and declared by the testator Don Antonio Mojal to be his last will
and testament in the presence of each of us, and at the request of said
testator Don Antonio Mojal, we signed this will in the presence of each
other and of the testator.)

PEDRO CARO
SILVERIO

MORCO
ZOILO MASINAS

As may be seen, the number of sheets is stated in said last paragraph of the will. It is true that in the
case of Uy Coque vs. Navas L. Sioca (43 Phil., 405), it was held that the attestation clause must
state the number of sheets or pages composing the will; but when, as in the case before us, such
fact, while it is not stated in the attestation clause, appears at the end of the will proper, so that no
proof aliunde is necessary of the number of the sheets of the will, then there can be no doubt that it
complies with the intention of the law that the number of sheets of which the will is composed be
shown by the document itself, to prevent the number of the sheets of the will from being unduly
increased or decreased.
With regard to the last defect pointed out, namely, that the testator does not appear to have signed
on all the sheets of the will in the presence of the three witnesses, and the latter to have attested
and signed on all the sheets in the presence of the testator and of each other, it must be noted that
in the attestation clause above set out it is said that the testator signed the will "in the presence of
each of the witnesses" and the latter signed "in the presence of each other and of the testator." So
that, as to whether the testator and the attesting witnesses saw each other sign the will, such a
requirement was clearly and sufficiently complied with. What is not stated in this clause is whether
the testator and the witnesses signed all the sheets of the will.
The act of the testator and the witnesses seeing reciprocally the signing of the will is one which
cannot be proven by the mere exhibition of the will unless it is stated in the document. And this fact
is expressly stated in the attestation clause now before us. But the fact of the testator and the
witnesses having signed all the sheets of the will may be proven by the mere examination of the
document, although it does not say anything about this, and if that is the fact, as it is in the instant
case, the danger of fraud in this respect, which is what the law tries to avoid, does not exist.
Therefore, as in the instant case the fact that the testator and the witnesses signed each and every
page of the will is proven by the mere examination of the signatures in the will, the omission to
expressly state such evident fact does not invalidate the will nor prevent its probate.
The order appealed from is affirmed with the costs against the appellants. So ordered.
EN BANC
G.R. No. L-7188

August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document
purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu,
he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He
left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some
cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead, testified without
contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out
in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed
on he left hand margin of the front page of each of the three folios or sheets of which the document
is composed, and numbered the same with Arabic numerals, and finally signed his name at the end
of his writing at the last page, all this, in the presence of the three attesting witnesses after telling
that it was his last will and that the said three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each other. The oppositors did not submit
any evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still, because at the time of the hearing
and when the case was to be decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the
testator which according to the trial court is the controlling factor and may override any defect in
form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last
Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and
because only questions of law are involved in the appeal, the case was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator himself
and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in
1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the
law at the time imposed certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the
testator and by the three attesting witnesses, requirements which were not complied with in Exhibit
"A" because the back pages of the first two folios of the will were not signed by any one, not even by
the testator and were not numbered, and as to the three front pages, they were signed only by the
testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand
margin of every page, said:
. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three pages
having been written on, the authenticity of all three of them should be guaranteed by the
signature of the alleged testatrix and her witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court
declared:
From an examination of the document in question, it appears that the left margins of the six
pages of the document are signed only by Ventura Prieto. The noncompliance with section 2
of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left
margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil
Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the
appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code
expressly provides: "The validity of a will as to its form depends upon the observance of the law in
force at the time it is made." The above provision is but an expression or statement of the weight of
authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the
testator's death or at the time the supposed will is presented in court for probate or when the petition
is decided by the court but at the time the instrument was executed. One reason in support of the
rule is that although the will operates upon and after the death of the testator, the wishes of the
testator about the disposition of his estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or bequest then becomes a
completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil.,
23. It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and controlling
factor and that all adequate remedies and interpretations should be resorted to in order to carry out
said intention, and that when statutes passed after the execution of the will and after the death of the
testator lessen the formalities required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed according to the law in force at the time
of execution. However, we should not forget that from the day of the death of the testator, if he
leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under
the due process clause of the constitution against a subsequent change in the statute adding new
legal requirements of execution of wills which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe and follow the legal requirements at
the time of its execution then upon his death he should be regarded and declared as having died
intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more
liberal requirements or which dispenses with such requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate
succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills,
Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With
costs.
EN BANC
G.R. No. 15566

September 14, 1921

EUTIQUIA AVERA, petitioner-appellee,

vs.

MARINO GARCIA, and JUAN RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose
Garcia,objectors-appellants.
Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET, J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the will of one Esteban
Garcia, contest was made by Marino Garcia and Juan Rodriguez, the latter in the capacity of
guardian for the minors Jose Garcia and Cesar Garcia. Upon the date appointed for the hearing, the
proponent of the will introduced one of the three attesting witnesses who testified with details not
necessary to be here specified that the will was executed with all necessary external formalities,
and that the testator was at the time in full possession of disposing faculties. Upon the latter point
the witness was corroborated by the person who wrote the will at the request of the testator. Two of
the attesting witnesses were not introduced, nor was their absence accounted for by the proponent
of the will.
When the proponent rested the attorney for the opposition introduced a single witness whose
testimony tended to show in a vague and indecisive manner that at the time the will was made the
testator was so debilitated as to be unable to comprehend what he was about.
After the cause had been submitted for determination upon the proof thus presented, the trial judge
found that the testator at the time of the making of the will was of sound mind and disposing memory
and that the will had been properly executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the will, and the only
errors here assigned have reference to the two following points, namely, first, whether a will can be
admitted to probate, where opposition is made, upon the proof of a single attesting witness, without
producing or accounting for the absence of the other two; and, secondly, whether the will in question
is rendered invalid by reason of the fact that the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of the will instead of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will bay be proved by the
testimony of only one of the three attesting witnesses, nevertheless in Cabang vs. Delfinado (34
Phil., 291), this court declared after an elaborate examination of the American and English
authorities that when a contest is instituted, all of the attesting witnesses must be examined, if alive
and within reach of the process of the court.
In the present case no explanation was made at the trial as to why all three of the attesting
witnesses were not produced, but the probable reason is found in the fact that, although the petition
for the probate of this will had been pending from December 21, 1917, until the date set for the
hearing, which was April 5, 1919, no formal contest was entered until the very day set for the
hearing; and it is probable that the attorney for the proponent, believing in good faith the probate
would not be contested, repaired to the court with only one of the three attesting witnesses at hand,
and upon finding that the will was contested, incautiously permitted the case to go to proof without
asking for a postponement of the trial in order that he might produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not produced, it does not in
itself supply any basis for changing the rule expounded in the case above referred to; and were it not
for a fact now to be mentioned, this court would probably be compelled to reverse this case on the
ground that the execution of the will had not been proved by a sufficient number of attesting
witnesses.
It appears, however, that this point was not raised by the appellant in the lower court either upon the
submission of the cause for determination in that court or upon the occasion of the filing of the
motion for a new trial. Accordingly it is insisted for the appellee that this question cannot now be
raised for the first time in this court. We believe this point is well taken, and the first assignment of
error must be declared not be well taken. This exact question has been decided by the Supreme
Court of California adversely to the contention of the appellant, and we see no reason why the same
rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335, 337.)
There are at least two reason why the appellate tribunals are disinclined to permit certain questions
to be raised for the first time in the second instance. In the first place it eliminates the judicial
criterion of the Court of First Instance upon the point there presented and makes the appellate court
in effect a court of first instance with reference to that point, unless the case is remanded for a new
trial. In the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their opponent the actual point
upon which reliance is placed, while they are engaged in other discussions more simulated than
real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as laying down any hard
and fast rule that would prove an embarrassment to this court in the administration of justice in the
future. In one way or another we are constantly here considering aspects of cases and applying
doctrines which have escaped the attention of all persons concerned in the litigation below; and this
is necessary if this court is to contribute the part due from it in the correct decision of the cases
brought before it. What we mean to declare is that when we believe that substantial justice has been
done in the Court of First Instance, and the point relied on for reversal in this court appears to be one
which ought properly to have been presented in that court, we will in the exercise of a sound
discretion ignore such question relates a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the appellant had raised this
question in the lower court, either at the hearing or upon a motion for a new trial, that court would
have had the power, and it would have been is duty, considering the tardy institution of the contest,
to have granted a new trial in order that all the witnesses to the will might be brought into court. But
instead of thus calling the error to the attention of the court and his adversary, the point is first raised
by the appellant in this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado, supra, contains nothing inconsistent with the
ruling we now make, for it appears from the opinion in that case that the proponent of the will had
obtained an order for a republication and new trial for the avowed purpose of presenting the two
additional attesting witnesses who had not been previously examined, but nevertheless
subsequently failed without any apparent reason to take their testimony. Both parties in that case
were therefore fully apprised that the question of the number of witnesses necessary to prove the
will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code of Civil Procedure,
as amended by Act No. 2645, it is essential to the validity of a will in this jurisdiction that the names

of the testator and the instrumental witnesses should be written on the left margin of each page, as
required in said Act, and not upon the right margin, as in the will now before us; and upon this we are
of the opinion that the will in question is valid. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each and every page; and it is
undeniable that the general doctrine is to the effect that all statutory requirements as to the
execution of wills must be fully complied with. The same doctrine is also deducible from cases
heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial it would be absurd to
suppose that the Legislature could have attached any decisive importance to them. The provision to
the effect that the signatures of the testator and witnesses shall be written on the left margin of each
page rather than on the right margin seems to be this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible difference whether the
names appear on the left or no the right margin, provided they are on one or the other. In
Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this court declared
a will void which was totally lacking in the signatures required to be written on its several pages; and
in the case of Re estate of Saguinsin (41 Phil., 875), a will was likewise declared void which
contained the necessary signatures on the margin of each leaf ( folio), but not in the margin of each
page containing written matter.
The instrument now before us contains the necessary signatures on every page, and the only point
of deviation from the requirement of the statute is that these signatures appear in the right margin
instead of the left. By the mode of signing adopted every page and provision of the will is
authenticated and guarded from possible alteration in exactly the same degree that it would have
been protected by being signed in the left margin; and the resources of casuistry could be exhausted
without discovering the slightest difference between the consequences of affixing the signatures in
one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra, where only the leaves,
or alternate pages, were signed and not each written page; for as observed in that case by our late
lamented Chief Justice, it was possible that in the will as there originally executed by the testratrix
only the alternative pages had been used, leaving blanks on the reverse sides, which conceivably
might have been filled in subsequently.
The controlling considerations on the point now before us were well stated In Re will of Abangan (40
Phil., 476, 479), where the court, speaking through Mr. Justice Avancea, in a case where the
signatures were placed at the bottom of the page and not in the margin, said:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution o will and testaments and to guarantee their truth
and authenticity. Therefore the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be disregarded.

In the case before us, where ingenuity could not suggest any possible prejudice to any person, as
attendant upon the actual deviation from the letter of the law, such deviation must be considered too
trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment appealed from will be
affirmed. It is so ordered, with costs against the appellants.
EN BANC
G.R. No. L-14322

February 25, 1960

In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
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.