SUCCESSION: ART.

808

G.R. No. 74695

September 14, 1993

three instrumental witnesses (same as those of the notarial will) and the notary
public who followed the reading using their own copies.

In the Matter of the Probate of the Last Will and Testament of the Deceased
Brigido Alvarado, CESAR ALVARADO, petitioner,
vs.
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA. ROSARIO
QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices,
Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA.
RINO, respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:
1

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
2
which affirmed the Order dated 27 June 1983 of the Regional Trial Court of
3
4
Sta. Cruz, Laguna, admitting to probate the last will and testament with codicil
of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time
awaiting probate before Branch 4 of the Regional Trial Court of sta. Cruz,
Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read
the final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eight-paged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled
"Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin
na may Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing
some dispositions in the notarial will to generate cash for the testator's eye
operation. Brigido was then suffering from glaucoma. But the disinheritance and
revocatory clauses were unchanged. As in the case of the notarial will, the
testator did not personally read the final draft of the codicil. Instead, it was
private respondent who read it aloud in his presence and in the presence of the

A petition for the probate of the notarial will and codicil was filed upon the
testator's death on 3 January 1979 by private respondent as executor with the
5
Court of First Instance, now Regional Trial Court, of Siniloan, Laguna.
Petitioner, in turn, filed an Opposition on the following grounds: that the will
sought to be probated was not executed and attested as required by law; that
the testator was insane or otherwise mentally incapacitated to make a will at the
time of its execution due to senility and old age; that the will was executed under
duress, or influence of fear and threats; that it was procured by undue and
improper pressure and influence on the part of the beneficiary who stands to get
the lion's share of the testator's estate; and lastly, that the signature of the
testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an
appeal was made to respondent court. The main thrust of the appeal was that
the deceased was blind within the meaning of the law at the time his "Huling
Habilin" and the codicil attached thereto was executed; that since the reading
required by Art. 808 of the Civil Code was admittedly not complied with, probate
of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement
of Art. 808 was substantially complied with when both documents were read
aloud to the testator with each of the three instrumental witnesses and the
notary public following the reading with their respective copies of the
instruments. The appellate court then concluded that although Art. 808 was not
followed to the letter, there was substantial compliance since its purpose of
making known to the testator the contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purpose of Art, 808 at the time his "Huling Habilin" and its codicil were
executed? If so, was the double-reading requirement of said article complied
with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of "counting fingers at three (3) feet"
by reason of the glaucoma which he had been suffering from for several years
and even prior to his first consultation with an eye specialist on
14 December 1977.

SUCCESSION: ART. 808

The point of dispute is whether the foregoing circumstances would qualify

Brigido as a "blind" testator under Art. 808 which reads:
Art. 808. If the testator is blind, the will shall be read to him
twice; once, by one of the subscribing witnesses, and again, by
the notary public before whom the will is acknowledged.
Petitioner contends that although his father was not totally blind when the will
and codicil were executed, he can be so considered within the scope of the term
as it is used in Art. 808. To support his stand, petitioner presented before the
trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the
6
Institute of Opthalmology (Philippine Eye Research Institute), the contents of
which were interpreted in layman's terms by Dr. Ruperto Roasa, whose
7
expertise was admitted by private respondent.
Dr. Roasa explained that
although the testator could visualize fingers at three (3) feet, he could no longer
read either printed or handwritten matters as of 14 December 1977, the day of
8
his first consultation.
On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
9
but chose not to do so because of "poor eyesight." Since the testator was still
capable of reading at that time, the court a quo concluded that Art. 808 need not
be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and
this was testified to by his witnesses, that Brigido did not do so because of his
10
11
12
"poor,"
"defective,"
or "blurred"
vision making it necessary for private
respondent to do the actual reading for him.
13

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

the scope of the term "blindness" as used in Art. 808, to wit:
The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in
accordance with his wishes . . .
Clear from the foregoing is that Art. 808 applies not only to blind testators but
also to those who, for one reason or another, are "incapable of reading the(ir)
will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his

will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to
conclude that Brigido Alvarado comes within the scope of the term "blind" as it is
used in Art. 808. Unless the contents were read to him, he had no way of
ascertaining whether or not the lawyer who drafted the will and codicil did so
confortably with his instructions. Hence, to consider his will as validly executed
and entitled to probate, it is essential that we ascertain whether Art. 808 had
been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall
be read twice; once, by one of the instrumental witnesses and, again, by the
notary public before whom the will was acknowledged. The purpose is to make
known to the incapacitated testator the contents of the document before signing
and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil who read the same aloud
to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and
that the single reading suffices for purposes of the law. On the other hand,
petitioner maintains that the only valid compliance or compliance to the letter
and since it is admitted that neither the notary public nor an instrumental witness
read the contents of the will and codicil to Brigido, probate of the latter's will and
codicil should have been disallowed.
We sustain private respondent's stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
14
and inflexible as to destroy the testamentary privilege.
In the case at bar, private respondent read the testator's will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary
public. Prior and subsequent thereto, the testator affirmed, upon being asked,
that the contents read corresponded with his instructions. Only then did the
signing and acknowledgement take place. There is no evidence, and petitioner
does not so allege, that the contents of the will and codicil were not sufficiently
made known and communicated to the testator. On the contrary, with respect to
the "Huling Habilin," the day of the execution was not the first time that Brigido

SUCCESSION: ART. 808

had affirmed the truth and authenticity of the contents of the draft. The
uncontradicted testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his expressed wishes
even prior to 5 November 1977 when Atty. Rino went to the testator's residence
15
precisely for the purpose of securing his conformity to the draft.
Moreover, it was not only Atty. Rino who read the documents on
5 November and 29 December 1977. The notary public and the three
instrumental witnesses likewise read the will and codicil, albeit silently.
Afterwards, Atty. Nonia de la Pena (the notary public) and Dr. Crescente O.
Evidente (one of the three instrumental witnesses and the testator's physician)
asked the testator whether the contents of the document were of his own free
16
will. Brigido answered in the affirmative.
With four persons following the
reading word for word with their own copies, it can be safely concluded that the
testator was reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the terms actually
appearing on the typewritten documents. This is especially true when we
consider the fact that the three instrumental witnesses were persons known to
the testator, one being his physician (Dr. Evidente) and another (Potenciano C.
Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order
to insure the authenticity of the will, the formal imperfections should be brushed
aside when they do not affect its purpose and which, when taken into account,
17
may only defeat the testator's will.
As a final word to convince petitioner of the propriety of the trial court's Probate
Order and its affirmance by the Court of Appeals, we quote the following
18
pronouncement in Abangan v. Abangan, to wit:
The object of the solemnities surrounding the execution of wills
is to close the door against bad faith and fraud, to avoid the
substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the subject should be
interpreted in such a way as to attain these primordial ends.
But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation
already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of the testator's
will, must be disregarded (emphasis supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms
in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast
these aside fro the mere reason that a legal requirement intended for his
protection was not followed strictly when such compliance had been rendered
unnecessary by the fact that the purpose of the law, i.e., to make known to the
incapacitated testator the contents of the draft of his will, had already been
accomplished. To reiterate, substantial compliance suffices where the purpose
has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of
time that this case has remained pending, this decision is immediately
executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.

SUCCESSION: ART. 808

G.R. No. L-26615

April 30, 1970

Severina Narciso, Et. Al.

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

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

George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositorsappellants Natividad del Rosario Sarmiento, Et. Al.

G.R. No. L-26884

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

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

April 30, 1970

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

NATIVIDAD DE JESUS AND DR. JAIME ROSARIO, Petitioners, v. HON.
CONRADO M. VASQUEZ, as Judge of the Court of First Instance of Manila,
Branch V, REGISTER OF DEEDS OF MANILA, and CONSUELO GONZALES
VDA. DE PRECILLA, Respondents.
G.R. No. L-27200

SYLLABUS

April 30, 1970

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO

S. GONZALES VDA. DE PRECILLA, petitioner administratrix, v. SEVERINA
NARCISO, ROSA NARCISO, JOSEFINA NARCISO, VICENTE MAURICIO,
DELFIN MAURICIO, REMEDIOS NARCISO, ENCARNACION, NARCISO,
MARIA NARCISO, EDUARDO NARCISO, FR. LUCIO V. GARCIA, ANTONIO
JESUS DE PRAGA, MARIA NATIVIDAD DE JESUS, DR. JAIME DEL
ROSARIO, ET AL., NATIVIDAD DEL ROSARIO-SARMIENTO and
PASCUALA NARCISO-MANAHAN, Oppositors-Appellants.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, Et. Al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for
respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila. Leandro
Sevilla & Ramon C. Aquino for petitioner administratrix.
Castro, Makalintal & Associates for oppositors-appellants Encarnacion
Narciso, Et. Al.
Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, Et. Al.
Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and
Antonio Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates for oppositors-appellants

2. ID.; ID.; ID.; ID.; ID.; IRREGULARITIES IN THE EXECUTION OF THE WILL;
CASE AT BAR. Upon its face, the testamentary provisions, the attestation
clause and acknowledgment were crammed together into a single sheet of
paper, apparently to save on space. Plainly, the testament was not prepared
with any regard for the defective vision of Da. Gliceria, the typographical errors
remained uncorrected thereby indicating that the execution thereof must have
been characterized by haste. It is difficult to understand that so important a
document containing the final disposition of ones worldly possessions should be
embodied in an informal and untidy written instrument; or that the glaring
spelling errors should have escaped her notice if she had actually retained the
ability to read the purported will and had done so.
3. ID.; ID.; ID.; EXECUTION OF WILLS; REQUISITES FOR VALIDITY; ART.
808, NEW CIVIL CODE READING OF THE WILL TWICE TO A BLIND
TESTATOR; PURPOSE. The rationale behind the requirement of reading the
will to the testator if he is blind or incapable of reading the will himself is to make
the provisions thereof known to him, so that he may be able to object if they are
not in accordance with his wishes.
4. ID.; ID.; ID.; ID.; ID.; ID.; NOT COMPLIED WITH IN INSTANT CASE.
Where as in the 1960 will there is nothing in the record to show that the
requisites of Art. 808 of the Civil Code of the Philippines that "if the testator is
blind, the will shall be read to him twice," have not been complied with, the said
1960 will suffer from infirmity that affects its due execution.
5. REMEDIAL LAW; SETTLEMENT OF ESTATE OF DECEASED PERSONS;
ADMINISTRATORS; GROUNDS FOR REMOVAL; ACQUISITION OF
INTEREST ADVERSE TO THAT OF THE ESTATE MAKES THE
ADMINISTRATOR UNSUITABLE TO DISCHARGE THE TRUST; CASE AT

SUCCESSION: ART. 808

BAR. Considering that the alleged deed of sale was executed when Gliceria
del Rosario was already practically blind and that the consideration given seems
unconscionably small for the properties, there was likelihood that a case for
annulment might be filed against the estate or heirs of Alfonso Precilla. And the
administratrix being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to
belong to the estate. This, plus her conduct in securing new copies of the
owners duplicate of titles without the courts knowledge and authority and
having the contract bind the land through issuance of new titles in her husbands
name, cannot but expose her to the charge of unfitness or unsuitability to
discharge the trust, justifying her removal from the administration of the estate.

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

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

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

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

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

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

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

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

Insofar as pertinent to the issues involved herein, the facts of these cases may
be stated as follows:

On 30 September 1965, oppositors Jaime Rosario, Et. Al. filed with the probate
court an urgent motion to require the Hongkong & Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September 1965.

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

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

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

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

SUCCESSION: ART. 808

The court denied this motion on 22 October 1965 for being premature, it being
unaware that such deposit in the name of the deceased existed. 1
On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special administratrix. It
was their claim that the special administratrix and her deceased husband,
Alfonso Precilla, 2 had caused Gliceria A. del Rosario to execute a simulated
and fraudulent deed of absolute sale dated 10 January 1961 allegedly
conveying unto said spouses for the paltry sum of P30,000.00 ownership of 3
parcels of land and the improvements thereon located on Quiapo and San
Nicolas, Manila, with a total assessed value of P334,050.00. Oppositors
contended that since it is the duty of the administrator to protect and conserve
the properties of the estate, and it may become necessary that, an action for the
annulment of the deed of sale land for recovery of the aforementioned parcels of
land be filed against the special administratrix, as wife and heir of Alfonso
Precilla, the removal of the said administratrix was imperative.
On 17 December 1965, the same oppositors prayed the court for an order
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22 October
1965, or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla,
in her capacity as special administratrix of the estate of the deceased Gliceria A.
del Rosario, filed with Branch IV of the Court of First Instance of Manila a motion
for the issuance of new copies of the owners duplicates of certain certificates of
title in the name of Gliceria del Rosario, supposedly needed by her "in the
preparation of the inventory" of the properties constituting the estate. The motion
having been granted, new copies of the owners duplicates of certificates
appearing the name of Gliceria del Rosario (among which were TCT Nos.
66201, 66202 and 66204) were issued on 15 November 1965. On 8 December
1965, according to the oppositors, the same special administratrix presented to
the Register of Deeds the deed of sale involving properties covered by TCT
Nos. 66201, 66202 and 66204 supposedly executed by Gliceria del Rosario on
10 January 1961 in favor of Alfonso Precilla, and, in consequence, said
certificates of title were cancelled and new certificates (Nos. 81735, 81736 and
81737) were issued in the name of Alfonso Precilla, married to Consuelo S.
Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will
of Gliceria A. del Rosario (Exhibit "D"). In declaring the due execution of the will,
the probate court took note that no evidence had been presented to establish
that the testatrix was not of sound mind when the will was executed; that the fact
that she had prepared an earlier will did not, prevent her from executing another
one thereafter; that the fact that the 1956 will consisted of 12 pages whereas the
1960 testament was contained in one page does not render the latter invalid;

that, the erasures and alterations in the instrument were insignificant to warrant
rejection; that the inconsistencies in the testimonies of the instrumental
witnesses which were noted by the oppositors are even indicative of their
truthfulness. The probate court, also considering that petitioner had already
shown capacity to administer the properties of the estate and that from the
provisions of the will she stands as the person most concerned and interested
therein, appointed said petitioner regular administratrix with a bond for
P50,000.00. From this order all the oppositors appealed, the case being
docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion
of 14 December 1965 for the removal of the then special administratrix, as
follows:
"It would seem that the main purpose of the motion to remove the special
administratrix and to appoint another one in her stead, is in order that an action
may be filed against the special administratrix for the annulment of the deed of
sale executed by the decedent on January 10, 1961. Under existing documents,
the properties sold pursuant to the said deed of absolute sale no longer forms
part of the estate. The alleged conflict of interest is accordingly not between
different claimants of the same estate. If it is desired by the movants that an
action be filed by them to annul the aforesaid deed absolute sale, it is not
necessary that the special administratrix be removed and that another one be
appointed to file such action. Such a course of action would only produce
confusion and difficulties in the settlement of the estate. The movants may file
the aforesaid proceedings, preferably in an independent action, to secure the
nullity of the deed of absolute even without leave of this court:"
As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that
if the movants were referring to the old titles, they could no longer be produced,
and if they meant the new duplicate copies thereof that were issued at the
instance of the special administratrix, there would be no necessity therefor,
because they were already cancelled and other certificates were issued in the
name of Alfonso Precilla. This order precipitated the oppositors filing in this
Court of a petition for mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia,
Et. Al. v. Hon. Judge Conrado M. Vasquez, Et. Al.), which was given due course
on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the
oppositors requested the Register of Deeds of Manila to annotate a notice of lis
pendens in the records of TCT Nos. 81735, 81736, and 81737 in the name of
Alfonso Precilla. And when said official refused to do so, they applied to the
probate court (in Sp. Proc. No. 62618) for an order to compel the Register of
Deeds to annotate a lis pendens notice in the aforementioned titles contending

SUCCESSION: ART. 808

that the matter of removal and appointment of the administratrix, involving TCT
Nos. 81735, 81736, and 81737, was already before the Supreme Court. Upon
denial of this motion on 12 November 1966, oppositors filed another mandamus
action, this time against the probate court and the Register of Deeds. The case
was docketed and given due course in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of
the order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June
1956 consisting of 12 pages and written in Spanish, a language that she knew
and spoke, witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin
Marquez, and acknowledged before notary public Jose Ayala; and another
dated 29 December 1960, consisting of 1 page and written in Tagalog,
witnessed by Messrs. Vicente Rosales, Francisco Decena, and Francisco Lopez
and acknowledged before notary public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of petitioner special
administratrix) to witness the execution of the last will of Doa Gliceria A. del
Rosario; that they arrived at the house of the old lady at No. 2074 Azcarraga,
Manila, one after the other, in the afternoon of 29 December 1960; that the
testatrix at the time was apparently of clear and sound mind, although she was
being aided by Precilla when she walked; 3 that the will, which was already
prepared, was first read "silently" by the testatrix herself before she signed it; 4
that he three witnesses thereafter signed the will in the presence of the testatrix
and the notary public and of one another. There is also testimony that after the
testatrix and the witnesses to the will acknowledged the instrument to be their
voluntary act and deed, the notary public asked for their respective residence
certificates which were handed to him by Alfonso Precilla, clipped together; 5
that after comparing them with the numbers already written on the will, the
notary public filled in the blanks in the instrument with the date, 29 January
1960, before he affixed his signature and seal thereto. 6 They also testified that
on that occasion no pressure or influence has been exerted by any person upon
the testatrix to execute the will.

to witness an important document, 10 and who took their residence certificates

from them a few days before the will was signed. 11 Precilla had met the notary
public and witnesses Rosales and Lopez at the door of the residence of the old
woman; he ushered them to the room at the second floor where the signing of
the document took place; 12 then he fetched witness Decena from the latters
haberdashery shop a few doors away and brought him to, the house the
testatrix. 13 And when the will was actually executed Precilla was present. 14
The oppositors-appellants in the present case, however, challenging the
correctness of the probate courts ruling, maintain that on 29 December 1960
the eyesight of Gliceria del Rosario was so poor and defective that she could not
have read the provisions of the will, contrary to the testimonies of witnesses
Decena, Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was admitted
by both parties, testified, among other things, that when Doa Gliceria del
Rosario saw him for consultation on 11 March 1960 he found her left eye to
have cataract (opaque lens), 15 and that it was "above normal in pressure",
denoting a possible glaucoma, a disease that leads to blindness 16 As to the
conditions of her right eye, Dr. Tamesis declared:
"Q But is there anything here in the entry appearing in the other documents
Exhibits 3-B, 3-C and 3-D from which you could inform the court as to the
condition of the vision of the patient as to the right eve?
"A Under date of August 30, 1960, is the record of refraction. that is setting of
glass by myself which showed that the right eye with my prescription of glasses
had a vision of 2 over 60 (20/60) and for the left eye with her correction 20 over
300 (20/300).
"Q In laymans language, Doctor, what is the significance of that notation that
the right had a degree of 20 over 60 (20/60)?
"A It meant that eye at least would be able to recognize objects or persons at a
minimum distance of twenty feet.
"Q But would that grade enable the patient to read print?

Of course, the interest and active participation of Alfonso Precilla in the signing
of this 1960 will are evident from the records. The will appeared to have been
prepared by one who is not conversant with the spelling of Tagalog words, and it
has been shown that Alfonso Precilla is a Cebuano who speaks Tagalog with a
Visayan accent. 7 The witnesses to the will, two of whom are fellow Visayans, 8
admitted their relationship or closeness to Precilla. 9 It was Precilla who
instructed them to go to the house of Gliceria del Rosario on 29 December 1960

"A Apparently that is only a record for distance vision, for distance sight, not for
near."
(pages 20-21, t.s.n., hearing of 23 March 1966)

SUCCESSION: ART. 808

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

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

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

"A Yes That is the vision for distant objects."

(pages 38, 39, 40. t.s.n., hearing of 23 March 1966).
The foregoing testimony of the ophthalmologist who treated the deceased and,
therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the
operation and removal of the cataract in her left eye and her being fitted with
aphakic lens (used by cataract patients), her vision remained mainly for viewing
distant objects and not for reading print. Thus, the conclusion is inescapable that
with the condition of her eyesight in August, 1960, and there is no evidence that
it had improved by 29 December 1960, Gliceria del Rosario was incapable f
reading, and could not have read the provisions of the will supposedly signed by
her on 29 December 1960. It is worth noting that the instrumental witnesses
stated that she read the instrument "silently" (t.s.n., pages 164-165). which is a
conclusion and not a fact.
Against the background of defective eyesight of the alleged testatrix, the
appearance of the will, Exhibit "D", acquires striking significance. Upon its face,
the testamentary provisions, the attestation clause and acknowledgment were
crammed together into a single sheet of paper, to much so that the words had to
be written very close on the top, bottom and two sides of the paper, leaving no
margin whatsoever; the word "and" had to be written by the symbol" &",
apparently to save on space. Plainly, the testament was not prepared with any
regard for the defective vision of Doa Gliceria. Further, typographical errors like
"HULINH" for "HULING" (last), "Alfonsa" ;or "Alfonso", "MERCRDRS" for
MERCEDES", "instrumental" for "Instrumental", and "acknowledged" for
"acknowledge, remained uncorrected, thereby indicating that execution thereof
must have been characterized by haste. It is difficult to understand that so
important a document containing the final disposition of ones worldly
possessions should be embodied in an informal and untidily written instrument;
or that the glaring spelling errors should have escaped her notice if she had
actually retained the ability to read the purported will and had done so. The
record is thus convincing that the supposed testatrix could not have physically
read or understood the alleged testament, Exhibit "D", and that its admission to
probate was erroneous and should be reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit "D", as appears from the photographs, Exhibits "E" to "E-1", in
no way proves; that she was able to read a closely typed page, since the acts
shown do not require vision at close range. It must be remembered that with the
natural lenses removed, her eyes had lost the power of adjustment to near
vision, the substituted glass lenses being rigid and uncontrollable by her. Neither

SUCCESSION: ART. 808

is the signing of checks (Exhibits "G" to "G-3") by her indicative of ability to see
at normal reading distances. Writing or signing of ones name, when sufficiently
practiced, becomes automatic, so that one need only to have a rough indication
of the place where the signature is to be affixed in order to be able to write it.
Indeed, a close examination of the checks, amplified in the photograph, Exhibit
"O", et seq., reinforces the contention of oppositors that the alleged testatrix
could not see at normal reading distance: the signatures in the checks are
written far above the printed base, lines, and the names of the payees as well as
the amounts written do not appear to be in the handwriting of the alleged
testatrix, being in a much firmer and more fluid hand than hers.
Thus, for all intents and purpose of the rules on probate, the deceased Gliceria
del Rosario was, as appellant oppositors contend, not unlike a blind testator,
and the due execution of her will would have required observance of the
provisions of Article 808 of the Civil Code.
"ART. 808. If the testator is blind, the will shall be read to him twice; once, by
one of the subscribing witnesses, and again, by the notary public before whom
the will is acknowledged."
The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate), 18 is to
make the provisions thereof known to him, so that he may be able to object if
they are not in accordance with his wishes. That the aim of the law is to insure
that the dispositions of the will are properly communicated to and understood by
the handicapped testator, thus making them truly reflective of his desire, is
evidenced by the requirement that the will should be read to the latter, not only
once but twice, by two different persons, and that the witnesses have to act
within the range of his (the testators) other senses. 19
In connection with the will here in question, there is nothing in the records to
show that the above requisites have been complied with. Clearly, as already
stated, the 1960 will sought to be probated suffers from infirmity that affects its
due execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, Et Al., against
the denial by the probate court of their petition for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doa Gliceria (Petition, G.R. No. L-26615, Annex "B").
The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo

Gonzales y Narciso, the ownership of 3 parcels of land and the improvements

thereon, assessed at P334,050.00, for the sum of P30,000.00.
In denying the petition, the probate court, in its order of 13 September 1966
(Annex "P", Petition) reasoned out that since the properties were already sold no
longer form part of the estate. The conflict of interest would not be between the
estate and third parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special administratrix
in the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned
was precisely the validity of the conveyance or sale of the properties. In short, if
proper, the action for annulment would have to be undertaken on behalf of the
estate by the special administratrix, affecting as it does the property or rights of
the deceased. 20 For the rule is that only where there is no special proceeding
for the settlement of the estate of the deceased may the legal heirs commence
an action arising out of a right belonging to their ancestor. 21
There is no doubt that to settle the question of the due execution and validity of
the deed of sale, an ordinary and separate action would have to be instituted,
the matter not falling within the competence of the probate court. 22 Considering
the facts then before it, i.e., the alleged deed of sale having been executed by
Gliceria del Rosario on 10 January 1961, when she was already practically
blind; and that the consideration of P30,000.00 seems to be unconscionably
small for properties with a total assessed value of P334,050.00, there was
likelihood that a case for annulment might indeed be filed against the estate or
heirs of Alfonso Precilla. And the administratrix, being the widow and heir of the
alleged transferee, cannot be expected to sue herself in an action to recover
property that may turn out to belong to the estate. 22 Not only this, but the
conduct of the special administratrix in securing new copies of the owners
duplicates of TCT Nos. 66201, 66202, and 66204, without the courts knowledge
or authority, and on the pretext that she needed them in the preparation of the
inventory of the estate, when she must have already known by then that the
properties covered therein were already "conveyed" to her husband by the
deceased, being the latters successor, and having the contract bind the land
through issuance of new titles in her husbands name cannot but expose her to
the charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
With respect to the orders of the court a quo denying (1) the oppositors motion
to require the Hongkong and Shanghai Bank to report all withdrawals made
against the funds of the deceased after 2 September 1965 and (2) the motion for
annotation of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the
same are to be affirmed.

SUCCESSION: ART. 808

The probate court pointed out in its order of 22 October 1965 (Annex "H") that it
could not have taken action on the complaint against the alleged withdrawals
from the bank deposits of the deceased, because as of that time the court had
not yet been apprised that such deposits exist. Furthermore, as explained by the
special administratrix in her pleading of 30 October 1965, the withdrawals
referred to by the oppositors could be those covered by checks issued in the
name of Gliceria del Rosario during her lifetime but cleared only after her death.
That explanation, which not only appears plausible but has not been rebutted by
the petitioners-oppositors, negates any charge of grave abuse in connection
with the issuance of the order here in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of
Court are clear: notice of the pendency of an action may be recorded in the
office of the register of deeds of the province in which the property is situated, if
the action affects "the title or the right of possession of (such) real property." 23
In the case at bar, the pending action which oppositors seek to annotate in the
records of TCT Nos. 81735, 81736, and 81737 is the mandamus proceeding
filed in this Court (G.R. No. L-26615). As previously discussed in this opinion,
however, that case is concerned merely with the correctness of the denial by the
probate court of the motion for the removal of Consuelo Gonzales Vda. de
Precilla as special administratrix of the estate of the late Gliceria del Rosario. In
short, the issue in controversy there is simply the fitness or unfitness of said
special administratrix to continue holding the trust; it does not involve or affect at
all the title to, or possession of, the properties covered by said TCT Nos. 81735,
81736 and 81737. Clearly, the pendency of such case (L-26615) is not an action
that can properly be annotated in the record of the titles to the properties.
FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and
set aside. The petition in G.R. No. L-26615 being meritorious, the appealed
order is set aside and the court below is ordered to remove the administratrix,
Consuelo Gonzales Vda. de Precilla, and appoint one of the heirs intestate of
the deceased Doa Gliceria Avelino del Rosario as special administrator for the
purpose of instituting action on behalf of her estate to recover the properties
allegedly sold by her to the late Alfonso D. Precilla. And in Case G.R. No. L26864, petition is dismissed. No costs.
Concencion, C.J., Dizon, Makalintal, Fernando, Teehankee and Villamor, JJ.,
concur.
Zaldivar and Castro, JJ., took no part.
Barredo, J., is on leave.

10